1. In this case an interesting question of law was opened, namely, as to whether the maintenance decree-holder with a charge (1st defendant) was to be held to have a superior claim to the plaintiff who purchased from a Court auction purchaser. It is admitted by Mr. Lakshmanna for the appellant that if the debt for which the property was brought to sale in execution of Small Cause No. 1906 of 1916 was not a debt binding on the family the claim of the 2nd defendant must prevail. The District Munsif held that the decree debt in S.C.S. No. 1906 of 1916 was not a binding debt which could prevail against the claim of the maintenance of the 1st defendant. He gives various reasons which have induced him to come to this conclusion and they are set out in paragraph 6 of his judgment. He observed inter alia that 'the extract from the suit register could have been produced to show the nature of the claim in S.C.S. No. 1906 of 1916.' There are, however, various other circumstances which induced him to come to,the conclusion that it has not been proved that the debt is a debt binding on the family. The Subordinate Judge, on the other hand, mainly or exclusively from the fact of the extract from the suit register which he admitted and marked as Exhibit H comes to the opposite conclusion. It is said that this Exhibit H supplies the missing link because it shows that the promissory note which is referred to in the endorsement of Exhibit B is the very note referred to in the suit register. The circumstance under which the admission of Exhibit H was applied for and allowed seems to be somewhat extraordinary. The plaint was filed on the 20th June, 1922 and the decree in the first Court was not made until the 23rd November, 1923. On the 29th January, 1924, an appeal was filed in the Lower Appellate Court and on the 4th December, 1924, there was a petition to receive Exhibit H, that is to say over a year after the learned District Munsif had commented on its absence and nearly 21/2 years from the institution of the suit. No order was made on this petition which is extremely vague in its allegations, the affidavit in support saying 'it is, therefore, very necessary that these two documents of which Exhibit H is one should be received' without saying any reasons why this document could not have been filed in the District Munsif's Court. The matter is governed by Order 41, Rule 27(d). The Appellate Court did not require the document to be produced so that the Court must be satisfied that there is some other substantial cause to allow such document to be produced. No substantial cause is alleged and further with regard to the proviso in Sub-section (2) the Court has not recorded any reason for its admission. On the 16th April, 1925, two days before judgment in appeal was delivered, the judge ordered this extract from suit register to be received and marked Exhibit H. Cases having gone to the length of saying that such reception of additional evidence under those circumstances is totally without jurisdiction. In Kaki Mutyalu v. Kanigolla Siva Raghavayya (1915) 3 L.W. 163 a Bench of this Court held that the admission of a document in evidence, was illegal where no reasons were recorded. There was no application for the admission of the evidence and no reasons were shown for failure to produce the document in the Court of first instance. Apart from this irregularity or illegality in admitting Exhibit H in evidence, the learned Judge has, to my mind, failed to deal with some of the aspects of this question of fact that presented themselves to the District Munsif. It is important to have this question of fact settled and I must, therefore, send the case do in for a finding to the Subordinate Judge as to whether or not the debt in question, i.e., the decree-debt in S.C.S. No. 1906 of 1916, is a binding debt of the family. The Subordinate Judge need not again enter into the question as to whether it takes precedence or not of the claim for maintenance of the 1st defendant. That is a question of law which if necessary can be argued later on. As I have said, it seems to me that on the authority of Kaki Mutyalu v. Kanigolla Siva Raghavayya (1915) 3 L.W. 163 the reception of Exhibit H was illegal. If the appellant here can persuade the Subordinate Judge that substantial reasons did exist for his failure to produce the documents in evidence in the Court of the District Munsif, the Subordinate Judge may consider the same. Otherwise, the finding is to be returned on the evidence on record. Six weeks for finding and 7 days for objections.
2. In compliance with the order contained in the above judgment, the Court of the Subordinate Judge at Masulipatam submitted the following
Finding.-This appeal has been remanded for a finding as to whether or not the decree debt in S.C.S. No. 1906 of 1916 was a debt binding on the family of the 1st defendant.
* * * * *
3. My finding is that the debt in S.C.S. No. 1906 of 1916 was a debt binding on the family of 1st defendant. I may add that I have not taken Exhibit H into consideration. A petition was filed before me for its admission but it was rejected for the reasons given on it.
4. This appeal again came on for hearing for final disposal before Mr. Wallace and Anantakrishna Aiyar, JJ.
The Court delivered the following
5. The first defendant (Venkatasubbamma) filed on 11th January, 1916, O.S. No. 451 of 1916, on the file of the Temporary District Munsif's Court of Gannavaram against her deceased husband's brother Venkatappayya and the alienees from Venkatappayya of certain joint family properties, for maintenance due to her from the joint family. She prayed that the maintenance that might be decreed to her should be made a charge upon nine specific items of irnmoveable property mentioned in her plaint. She alleged that items 1 to 8 had Seen alienated by Venkatappayya to the other defendants in O.S. No. 451 of 1916 fraudulently and collusively with a view to defeat her right of maintenance. She also alleged that those alienations were not bona fide nor supported by consideration. She obtained a decree for maintenance on 27th April, 1918, and the same was charged by the decree on all the nine items of immoveable property mentioned in her plaint. Before the decree was passed in O.S. No. 451 of 1916, P.W. 1. (Narasayya) filed a plaint on 27th January, 1916, and obtained a decree for money in Small Cause Suit No. 1906 of 1916 on the file of the same Court against Venkatappayya on a promissory note, and in execution of that decree P.W. 1 brought item 9, specified in O.S. No. 451 of 1916, as one of the properties charged for the widow's maintenance, to sale, and after purchasing the same himself on 8th April, 1918, sold the same to the plaintiff on 2nd June, 1919. In the meantime the widow, Venkatasubbamma, executed the maintenance decree obtained by her (O.S. No. 451 of 1916) and brought item No. 9 mentioned in that decree to sale, and the second defendant Veerayya became the purchaser in Court auction on 5th April, 1922. The 2nd defendant attempted to obtain possession of the said property in pursuance of the sale certificate granted to him in O.S. No. 451 of 1916, and therefore the plaintiff instituted the original suit, out of which this second appeal has arisen, for a declaration that the Court-sale of the property in suit (item No. 9 in O.S. No. 451 of 1916) in favour of the 2nd defendant is not valid and binding on him and for a permanent injunction restraining the 2nd defendant from taking possession of the property in pursuance of the Court-sale to him.
6. The 1st defendant, the widow Venkatasubbamma, did not appear in this suit. The 2nd defendant pleaded that the purchase by the plaintiff's vendor P.W. 1 in execution of the Small Cause decree on 8th April, 1918, was vitiated by the doctrine of lis pendens, since O.S. No. 451 of 1916 instituted by the widow to have the suit item also made a charge in respect of her maintenance was pending at the time, and that consequently the purchase by P.W. 1 could not prevail over the widow's rights, that the 2nd defendant being the auction purchaser in execution of the maintenance decree, his rights to the property should prevail over the rights of P.W. 1, the plaintiff's assignor.
7. Three main questions were discussed in the Lower Courts--(a) whether the doctrine of lis pendens applies to suits for maintenance where a charge is claimed on specified immove-able property; (b) whether the doctrine applies to involuntary sales; and (c) whether debts binding on the joint family have priority over claims of widows of the joint family for maintenance, and, if so, whether the Court-sale to P.W. 1 would have precedence and priority over the Court-sale to the 2nd defendant in the circumstances.
8. The Trial Court found that the decree-debt in Small Cause Suit No. 1906 of 1916 was not under the circumstances a binding debt which could have prevailed against the claim for maintenance of the 1st defendant; and on the other two points the Trial Court held that the doctrine of lis pendens applied. The suit was accordingly dismissed. On appeal by the plaintiff, the Lower Appellate Court admitted a fresh document in evidence and found that the decree-debt in Small Cause Suit No. 1906 of 1916 was a debt binding on the joint family. The Lower Appellate Court further observed that the doctrine of lis pendens applied in the circumstances, and therefore confirmed the Trial Court's decree.
9. When the second appeal first came for hearing, Mr. Justice Odgers being of opinion that the finding of the Lower Appellate Court on the question of the binding nature of the debt, which was the subject-matter of the Small Cause Suit No. 1906 of 1916, was not satisfactory, called for fresh findings and reserved the other questions of law arising in the case for further consideration. The finding submitted by the Lower Appellate Court (another Subordinate Judge) is to the effect that the debt which was the subject-matter of the Small Cause suit was one binding on the joint family. This finding is one of fact and has to be accepted for the purpose of this second appeal.
10. Mr. Lakshmanna, the learned advocate for the appellant, argued two questions : (1) that the doctrine of lis pendens does not apply to the case; and (2) that debts binding on the family have priority over the claims of a Hindu widow for maintenance, and that on the finding of the Lower Appellate Court that the debt which gave rise to the Small Cause decree was binding on the family, the purchase by P.W. 1 in Court-sale should prevail over the purchase made by the 2nd defendant.
11. On the question of lis pendens we are clearly of opinion that the doctrine applies to a suit for maintenance where the plaintiff claims to have maintenance specifically charged on specific items of immoveable properties mentioned in the plaint. In such a case, 'a right to immoveable property is directly and substantially in question' within the meaning of Section 52 of the Transfer of Property Act, and therefore 'the property cannot be transferred or otherwise dealt with by any party of the suit so as to affect the rights of any other party to the suit under any decree which may be made therein'. Dose Thim-manna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 is a clear and direct decision on this point. There, the learned Judges (Benson and Sankaran Nair, JJ.) held that a 'suit in which a widow claims to have her maintenance made a charge on specific immoveable property is one in which a right to such immoveable property is directly and specifically in question within the terms of Section 52 of the Transfer of Property Act'. See also Jogen-dra Chunder Ghose v. Fulkumari Dassi I.L.R. (1899) C. 77 and Krishna Pattar v. Sinnaponnu (1914) 25 I.C. 759. In fact the learned advocate for the appellant did not seriously dispute this point, and we think it is clear that the doctrine of lis pendens applies to a suit for maintenance in which the plaintiff claims to have her maintenance made a charge on specific immoveable property mentioned in the plaint and a decree is passed creating a charge on such property.
12. Mr. Lakshmanna, however, argued that the doctrine of lis pendens has no application to cases of involuntary sales. It is however clear to us that the principle of the doctrine of lis pendens applies equally to involuntary sales and is not confined to transfers inter vivos if the other conditions are satisfied. In Pethu Aiyar v. Sankaranarayana Pillai I.L.R. (1916) M. 955 : 32 M.L.J. 374 Justice Napier observed as follows:
It is now beyond dispute that involuntary sales by decree are covered by the mischief of the doctrine,
though having regard to the provisions of Section 2, proviso (d), Section 52 as such might not apply to such cases. See Man Singh v. Amantaka Prasad (1914) 26 I.C. 879 and Tinoodhan Chatterjee v. Trailokhya Charan Sanyal (1912) 17 C.W.N. 413. In Tinoodhan Chatterjee v. Trai-lokhya Charan Sanyal (1912) 17 C.W.N. 413 the learned Judges held that
'the doctrine of lis pendens is applicable to a purchase at an execution sale, and that the question may now be considered as set at rest by decisions of the Privy Council' (page 415).
13. In Ghose on Mortgages, Volume II, page 706; the learned author remarks that
the weight of authority is decidedly in favour of the extension of the doctrine to alienations in invitum;
and at page 707 it is stated that in Nilakant Banerji v. Suresh Chandra Mullick (1885) L.R. 12 IndAp 171 : I.L.R. 12 C. 414 (P.C.) their Lordships of the Privy Council expressed strong doubts as to the correctness of confining the principle to voluntary alienations. And the question may now be taken to be practically concluded by their Lordships' judgment in Radhamadhub Holdar v. Monohur Mukerji and Moti Lal v. Karrabuldin (4897) L.R. 24 IndAp 70 : I.L.R 25 C. 179 (P.C.). In Vedachari v. Narasimha Mudali : AIR1924Mad307 Krishnan and Odgers, JJ., held that the doctrine of lis pendens applies to Court-sale also.
14. The question is discussed in Hukm Chand's Treatise on the law of res judicata at pages 713 and 714. The conclusion arrived at is that the weight of authority is in favour of the view that a purchaser at a sale in execution pending a suit is bound by the result in that suit. The inconvenience that would be caused by upholding the opposite view is forcibly pointed out in an elaborate judgment of Sir Richard Couch, C.J., in Raj Ki'shen Mookerjee v. Radhamadhub Holdar (1874) 21 W.R. 349. See also Bennett on Lis 'pendens, page 328, Section 284.
15. We accordingly overrule the contention raised by the learned advocate for the appellant and hold that the principle of the doctrine of lis pendens applies to sales in Court auction also.
16. The last point raised by the learned advocate for the appellant is really the point that was strongly pressed by him in this second appeal. He argued that debts binding on a joint Hindu family have priority over maintenance of widows, and as the finding of the Lower Appellate Court that the decree in the Small Cause suit was in respect of a debt binding on the joint family has to be accepted, he argued that the claims of the widow, the 1st defendant and of the 2nd defendant, who is the auction purchaser in execution of the maintenance decree, could not prevail over the rights of the auction purchaser in execution of the Small Cause Court's decree. He strongly relied on the following observations in Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 of the learned Judges, Benson and Sankaran Nair, JJ., that
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.
17. He also relied on the observations of Benson and Bhashyam Aiyangar, JJ., in Jayanti Subbiah v. Alamelu Mangamma I.L.R. (1902) M. 45 : 12 M.L.J. 270 to the effect that the debts of a husband take precedence over the widow's claims for maintenance. Some other decisions were also referred to, to the same effect.
18. Turning to Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 it is clear that the observations relied on were only obiter. The Court as a matter of fact held in that case that the doctrine of lis pendens applied, and upheld the widow's claims. Further, if is not mentioned what debts are entitled to any priority over the widow's claim for maintenance and under what provisions of law. Mr. Lakshmanna admitted, and in our view very properly that the case reported in Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 is not a decision on this point, and that the observations relied on at page 509 are only obiter. The decision in Jayanti Subbiah v. Alamelu Mangamma I.L.R. (1902) M. 45 : 12 M.L.J. 270 does not lay down anything inconsistent with the view we are inclined to adopt. In that case there was no decree obtained by the widow creating a charge in respect of any specific immoveable property of the family; nor was her general claim for maintenance against the joint family estate reduced by any contract between the parties to the form of a specific charge on any specific immoveable properties of the family. In these circumstances, the learned Judges held that an auction purchaser in execution of a money decree binding on the family was entitled to the properties purchased by him, and that the general rights of a Hindu widow under Hindu law could not be put forward to resist the claim of such auction purchaser.
19. As observed by Mr. Justice West in Lakshman Ramchandra Joshia v. Satyabhamabai I.L.R. (1877) B. 494
The widow's claim being strictly to maintenance and maintenance only, without any defined share in the estate even on partition, and the kind of maintenance even that she can claim being dependent on the perhaps fluctuating circumstances of the joint family, it appears that although she may at her will get her claim recognised as chargeable on the estate in the hands of the co-parceners reduced to certainty, and secured as a specific charge on the estate, yet if she could refrain from that course in the hope of sharing the improving circumstances of the family or through mere carelessness, she leaves to the co-parceners an unlimited estate to deal with at their discretion, and must share their ill as well as their good fortune.
20. In the absence of fraud, the above passage describes the widow's rights in general, and before her rights are reduced to the form of a charge on any specified family property.
21. The other decisions cited do not take the case any further. In those cases also there was no specific charge created, either by act of parties or by the decree of Court, over specific items of immoveable property belonging to the family for the maintenance due to the widow. Our attention was also drawn to Trevelyan's Hindu Law, 3rd Edition, page 99, where it is stated as follows:
A right of maintenance is not affected by a transfer made during the pendency of a suit for maintenance, unless such transfer be effected for the purpose of paying off a debt, which has priority over the claim for maintenance.
22. Mulla's Hindu Law, 6th Edition, Section 570, page 578, was also relied on, where it is mentioned that
Debts contracted by a Hindu take precedence over the right of maintenance of his wife or infant child, or his widow after his death. The same is true of debts contracted by the manager of the joint family of which the husband was a member, provided the debts were incurred for the benefit of the family.
23. The only authority quoted by the learned author, Sir 'E. J. Trevelyan, is Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 about which we have already made our remarks. The passage quoted from Mr. Mulla's book refers, as we understand it, only to cases where the right of maintenance has not been reduced to the form of a specific charge either by private contract or by proceedings taken in Court, That is made clear by the concluding sentence in the same paragraph at page 579 :
But where maintenance has been made a charge upon the property, it takes precedence over the right of a subsequent purchaser of the same property in execution of a money decree, though the decree was in respect of debts binding on the family.
24. No doubt in paragraph 572 the learned author quotes the observations already referred to from Dose Thimmanna Bhutta v. Krishna Tantri I.L.R. (1906) M. 508 : 16 M.L.J. 413 to the effect that
The transferee of immoveable properties pending a suit by a Hindu widow to establish a charge on specific immoveable property for her maintenance must hold the property subject to such charge, unless the transfer be effected for the purpose of paying off a debt which has priority over the widow's claim for maintenance.
25. In Somasundaram Chetty v. Unnamalai Animal I.L.R. (1920) M. 800 : 39 M.L.J. 179 it was held by Oldfield and Seshagiri Aiyar, JJ., that
A charge on joint family properties created by a decree for maintenance payable to the widow of a member of a joint Hindu family takes precedence over the right of a subsequent purchaser of the same properties in execution of a money decree binding on the family.
26. No objection could be, nor in fact was, taken by the learned advocate for the appellant to the decision in Somasundaram Chetty v. Unnamalai Ammal I.L.R. (1920) M. 800 : 39 M.L.J. 179. See also Lakshman Ram-chandra Joshia v. Satyabhamabai I.L.R. (1877) B. 494 per West, J., Kuloda Prosad Chatterjee v. Jageshar Koer I.L.R (1899) C. 194 Muttia v. Viramma I.L.R. (1877) M. 283 and Jamna Bai Ammal v. Balakrishna Tazvker : (1927)53MLJ176 In Jamna Bai Ammal v. Balakrishna Tawker 18 Mr. Justice Venkatasubba Rao observed that
(1) Under Hindu Law a widow's claim to maintenance is not a charge upon the estate of her deceased husband until it is fixed and specifically charged upon that estate either by agreement or by decree of Court and does not take precedence over unsecured debts which are binding on the family of her deceased husband; (2) that if the widow's claim has ripened into a specific charge it has priority over the claims of creditors whose rights have not been secured by alienation of property.
27. The cases in Sham Lal v. Banna I.L.R. (1882) A. 296 and Gur Dayal v. Kaun-sila I.L.R. (1883) A. 367 were relied on by the learned advocate for the appellant. But in neither of them was there a specific charge created in respect of the maintenance Maim. The observation that even if there is a charge it would be subordinated to the claims of the creditor is not (so far as we are aware) supported by any texts of Hindu Law, and no such texts were cited to us. Section 2 of the Transfer of Property Act was also relied on to show that nothing in Chapter II of the Transfer of Property Act (and Section 52 forms part of Chapter II) shall be deemed to affect any rule of Hindu Law; but as no rule of Hindu Law has been brought to our notice supporting the appellant's contention, we are of opinion that the statement that the debts of a Hindu family take precedence over the claims of Hindu widows for maintenance would apply only so long as the claim for maintenance is not made a charge on any specific property.
28. In these circumstances, the question arises whether any reason has been shown why the principle of the doctrine of lis pendens should not apply to such cases as the one before us. After a decree is passed charging specific items of immoveable property of the joint Hindu family for the maintenance due to the widow, it is clear that the rights of a simple money creditor of the joint family do not take priority over the charge created by the decree,-fraud and collusion apart. Does it make any difference when such money creditor seeks to proceed against immoveable property belonging to the family at a time when a suit by the widow claiming to charge that immoveable property is pending in a Court, if such a decree in her favour is ultimately passed. The very principle of the doctrine of lis pendens is to prevent creation of fresh rights with reference to immoveable properties which are the subject of adjudication in suits pending before Courts. After decree, the decree operates, and would protect the decree-holder against any subsequent transferees. One object of the doctrine of lis p end ens is to prevent the plaintiff's rights and claims to property being prejudiced by delay of Courts in disposing of the suit and to prevent dealing of the property by or at the instance of the defendant to the prejudice of the plaintiff.
29. The purpose of the rule is to keep the subject-matter of the litigation within the power of the Court until the judgment or decree shall be entered since otherwise, by successive alienations pending the suit, the judgment or decree could be rendered abortive and impossible of execution. To give effect to the doctrine of lis pendens, two things seem to be indispensable :
(1) That the litigation must be about some specific thing which must necessarily be affected by the termination of the suit; and
(2) that the particular property involved in the suit must be so defined in the description that any one reading it can learn thereby what property is intended to be made the subject of litigation.
30. If the conditions are fulfilled, the plea that the purchase was made bona fide and that the purchaser paid a full consideration for it will not avail against such judgment or decree; nor will the purchaser be permitted to prove that he had no notice of the suit. The law infers that all persons have notice of proceedings of Courts of record. See Black on Judgment, Vol. II, Section 550.
31. The principle of the doctrine of lis pendens is explained by the Privy Council in Faiyaz Husain Khan v. Frag Narain .(1907) L.R. 34 I.A 102 : I.L.R. 29 A. 339 : 17 M.L.J. 263 (P.C) Lord Macnaghten, after referring to Lord justice Turner's observations in Bellamy v. Sabine A. (1857) 1 D. & J. 566 to the effect that
it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail
observed that the correct mode of stating the doctrine, as Cran-worth, L.C., observed in the same case, is that
pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent.
32. It being clear, and in fact not disputed, that Section 52 of the Transfer of Property Act applies to a suit for maintenance where a charge is claimed in respect of specific immoveable property, we are not able to see how the principle of the doctrine of lis pendens ceases to be applicable during the period between the date of the plaint and the date of the decree. No specific rule of Hindu Law to the contrary has been quoted to us, and the principle of the doctrine of lis pendens must be held to apply, it not being pretended that the rights created in favour of the plaintiff's assignor, P.W. 1, during the pendency of the maintenance suit were under the authority of the Court in which that suit was pending. Where reckless plaints are filed claiming charges upon all immoveable properties belonging to the defendants without any justification whatsoever, and with a view to embarrass the management by the kartha of the family, Section 52 empowers the Court to sanction that property which is the subject-matter of the suit might be transferred or otherwise dealt with by any party to the suit on such terms as the Court may impose. If the Court be satisfied that for paying off debts due by the family, the defendant who is the manager of the family should be authorised to sell any of the properties mentioned in the maintenance plaint, then it is open to the Court, if it thinks fit, to sanction the sale or transfer of any such property. Filing of such plaints in Courts should be taken to constitute notice to all persons concerned and unless the money creditor of the family took steps to get sanction of the Court under Section 52 of the Transfer of Property Act, it would seem to logically follow that any transfer of the property mentioned in the maintenance plaint could not affect the plaintiff, in case she got a decree charging that very property.
33. Our attention was not drawn to any direct decision on the point we have to decide. There is however, an observation of Justice Phillips in the case reported in Rajah of Kalahasti v. Venkatappa Nayanim Bahadur Varu (1928) 27 L.W. 544 it is observed as follows:
Under her husband's will the widow obtained no specific charge on the estate and could only claim the allowance as a legatee or as a Hindu widow, but from the date of her suit, namely, 22nd March, 1897, she became entitled to a charge for her allowance by virtue of the decree, dated 22nd August, 1900, which must be deemed to refer back her right to the date of her plaint. As these appeals are concerned mainly with the relative priority of Lakshmikantamma's claim and the claims of the several appellants, it is important to remember that the widow's claim dates back to 22nd March, 1897, and any mortgages or charges created after that date would not affect her right.
34. No doubt the question is not discussed by the learned Judge, but the observation of the learned Judge is in accordance with the view we are inclined to take for the reasons already mentioned by us.
35. Our attention was drawn to the decision of a learned Judge of this Court in the case reported in Rattamma v. Seshachalam Sarma (1926) 52 M.L.J. 520 where he held that a charge takes effect only from the date of the decree. If the learned Judge intended to lay down that even in cases where a plaint prays for specific charge on specific immoveable properties mentioned in it, a charge could take effect only from the date of the decree, and not from the date of the suit, then with all respect, we are unable to agree with him. No doubt in cases where no charge is claimed on any specific immoveable property, but only a general claim is made against the defendant (manager) and the joint family property generally, without specifying in the plaint any property, then, in such cases, a decree creating a charge on any specific immoveable property would take effect ordinarily only from the date of the decree; but the case would be different when the plaint claims a charge on specific immoveable property and the decree also grants such prayer and charges such specific property. See in this connection Mayne's Hindu Law, Section 462, where the learned author states as follows:
Where a widow had sued for maintenance and had named specific pieces of property in order to show the amount sne was entitled to, but had made no claim for a charge on the property, but such a charge was in fact created by the decree, the charge was held not to be binding as against a mortgage made pending suit, by virtue of the doctrine of lis pendens. It would have been different if the suit had been to obtain a charge.
36. A somewhat similar question has arisen in England and America. The general principles of the doctrine of lis pendens being the same there as in India, we think, it is perhaps permissible to refer to analogous cases decided in those countries. It has there been held that
If in a suit for alimony, relief is sought in respect of specific property, either by making it chargeable with the payment of alimony, or setting it apart for the use of or zs the property of one of the parties, or of partitioning or dividing it between them, the doctrine of lis pendens will apply'-(see page 723, Hukm Chand's Treatise on Res Judicata).
37. In Ulrich v. Ulrich Mackey. 290 the suit was for maintenance, yet the Supreme Court held the rule of lis pendens to apply, as a certain lot was described in the bill, and it was alleged that the lot constituted the principal property of the defendant out of which the alimony should be decreed. In Wilkinson v. Elliot 19 Am. St. Rep. 158 the suit was for divorce and alimony from certain property specifically described, and it was contended that the doctrine had no application in such suits, but Johnston, J., held
If a divorce is asked on account of the fault of the husband, the wife may ask not only that all her own land may be restored to her that has not been disposed of, but may describe particular property belonging to the husband, and ask that the same may be set apart for her as permanent alimony. When this is done, the property is made the subject-matter of litigation, and is brought within the jurisdiction of the Court, and any one who purchases the same should be bound by the judgment or decree thereafter rendered. If in such an action there was no specific property pointed out, but only a general prayer for alimony, the doctrine would not apply, for the reason that the alimony might be awarded out of either real or personal property ; and as no particular property was described and made the subject-matter of the litigation, no one could have noticed that any particular property was involved.
38. Again, in Powell v. Campbell 19 Am. St. Rep. 350 it was observed that
In many cases where, in divorce proceedings, the application is for alimony proper, that is, an allowance to be paid at regular periods for the wife's support, it was held that the rule of lis pendens does not apply where the suit is in personam, and did not relate to any specific part of the personal or real estate of the husband. If, however, the wife in her complaint specifically describes property which she asks the Court to decree to her for her support, there seems to be no well-founded reason why the rule of lis pendens should not apply...In such a case, a purchaser pendente lite with notice of the suit and its objects knows that the property described may be decreed to the wife, and that one of the objects of the suit is to obtain a decree awarding such property to her (see Section 284 of Hukm Chanel's Law of Res Judicata, pages 723 at 724 and Bennett on Lis Pendens, page 267, Section 219).
39. The conclusion would seem to be that if the prayer in the bill be for alimony out of her husband's general estate, then the doctrine of lis pendens would not apply; but if the prayer be for alimony to be assigned to the wife out of any specific property of the husband mentioned in the bill or petition, then the rule of lis pendens would apply. The discussion is interesting, and throws light on the applicability of the doctrine of lis pendens to cases like the one before the Court.
40. For the above reasons, we hold that Section 52 of the Transfer of Property Act applies to a suit by a Hindu widow in which she claims to have her maintenance charged on specific items of immoveable property mentioned in the plaint; that the principle of the doctrine of lis pendens applies to sales in ivitum that take place during the pendency of such suits; that a decree obtained by the plaintiff in such a suit creating a specific charge over specific items of immoveable property mentioned in the plaint operates to give her a charge as from the date of the plaint, and not as from the date of the decree only, unless there be anything in the decree to the contrary; that without the sanction of the Court, transfers inter vivos or sales in invitum during the pendency of such suit could not prevail over such charge claimed in the plaint and granted by the decree; that a simple money creditor of a joint Hindu family has no priority over such charge granted by the decree, in the absence of. fraud or collusion, and an auction purchaser, during the pendency of such maintenance suit, of an item of property over which a charge was claimed in the plaint and was granted by the decree who purchased in execution of a simple money decree binding on the family, is hot entitled to priority over another auction purchaser of such property in proceedings taken to execute such maintenance decree.
41. We would accordingly dismiss the second appeal with costs.