1. The point for determination in this appeal is whether the plaintiffs' mortgage dated July 1927 can take precedence over the appellant's maintenance charge declared by. the decree in. O.S. No. 38 of 1919. The, decree in that suit was passed only on 1st February 1928 and the plaintiffs accordingly contended that the charge must, be held to take effect only from the date of the decree and cannot therefore prevail as against their mortgage. The appellant on the other hand maintained that by reason of the application of the doctrine of lis pendens laid down in Section 52, T.P. Act, her claim is entitled to priority over the plaintiffs' mortgage, because in the written statement filed by her in February 1921 in O.S. No. 38 of 1919 she had asked that her maintenance may be made a charge on a sufficient portion' of the properties forming the subject-matter of that suit and issues raising the question of her right to a charge had been framed as early as 5th March 1921 though for some reason or other the suit was not decided till February 1928.
2. An extreme contention has been put forward before us on behalf of the respondent that a claim for maintenance even when coupled with a prayer for a declaration of charge on specific immoveable properties, will not fall within the terms of Section 52 so as to attract the doctrine of lis pendens, because such a claim cannot be described as a claim of 'right to immoveable property directly and specifically in question.' Reliance was placed in support of this argument on a decision of Devadoss, J., in Rattamma v. Seshachalam Sarma : AIR1927Mad502 and certain observations of Jackson, J., in Official Receiver, Cuddappa v. Subbamma 1927 Mad 403. The judgment of Devadoss, J., is opposed to the course of decisions both in this presidency and elsewhere and it has been definitely dissented from in Seetharamanujacharyulu v. Venkatasubbamma 1930 54 Mad 132 and Ramaswami Pillai v. Trichnapoly Co-operative Credit Bank : AIR1935Mad867 . As regards the observation of Jackson, J., we think it sufficient to say that it was obiter because the actual decision in the case did not turn upon that remark. We therefore overrule the contention that Section 52 has no application to a claim for a maintenance charge. The learned District Judge has decided against the appellant on a different ground. Relying upon some observations in Seetharamanujacharyulu v. Venkatasubbamma 1930 54 Mad 132 the learned Judge 'was of opinion that because defendant 2 had not specified any item of immoveable property in her written statement in O.S. No. 38 of 1919 she could not invoke Section 52. He drew a distinction between a claim against the general estate and a claim for a charge on specified immoveable property and also perhaps a distinction between a case where a claim is made against the 'whole estate' and one where the claim is made against a 'sufficient portion' of the estate. It seems to us that the learned Judge has misinterpreted the observations in Seetharamanujacharyulu v. Venkatasubbamma 1930 54 Mad 132
3. Those observations occur in a portion of the judgment where the learned Judges were referring by way of analogy to certain American cases dealing with the right to alimony, for the purpose of supporting their conclusion that in claims for maintenance where a charge is also prayed for, the charge when ultimately decreed will take effect not merely from the date of the decree but from the date of the plaint. In the quotation which the learned Judges make from the American cases the real distinction is between cases where the claim is only in personam and cases where the claim is for a charge. The claim in personam that is referred to is a claim against the general estate. The antethesis in the American cases was not between the whole estate and a specified' portion of the estate. In the present case, the written statement filed by the present appellant in O.S. No. 38 of 1919' prayed in para. 9 that the maintenance-awarded to her 'may be made a charge on sufficient portion of the suit properties'. She did not of course attach a schedule to the written statement, because she was making a claim with reference to the properties specified in the plaint schedule. As observed in Lokanath v. Achuthananda (1912) 15 Cal LJ 391 it is sufficient if upon a reading' of the pleadings in the case the identity of the property involved in the litigation could be ascertained. If that is the true position, we do not see why it should make any difference when the lady who claims maintenance prays that' a charge may be declared not on all the: properties but on a sufficient portion of; the properties. All the properties are involved in the lis so far as her prayer is concerned, but she also refers to the undoubted discretion which the Court has to restrict the charge to any reasonable portion of the properties.
4. It does not seem to us right to hold that a reference in the written statement to the undoubted power of the Court to restrict the charge to a reasonable portion of the property should itself be made the reason for excluding the operation of the doctrine of lis pendens. The latest decision if a Bench of this Court composed of Ramesam and Venkatasubba. Rao, JJ., in Ramaswami Pillai v. Trichnapoly Co-operative Credit Bank : AIR1935Mad867 is authority in favour of the proposition that i she had asked for a declaration of a charge-on all the properties involved in the suit, she would certainly be entitled to the benefit of the doctrine of lis pendens, though ultimately the charge may be declared only on some of the properties. The same principle, we think, is equally applicable to the present case. We would accordingly set aside the decision of the lower Court on issues 2 and 3 in the case. The reservation made by the lower-Court in respect of issue 4 will stand. The decree of the lower Court will be modified by declaring that the plaintiffs' mortgage is subject to the charge created in the appellant's favour by the decree in O.S. No. 38 of 1919. The appellant will be entitled to her costs in the suit and in appeal from the plaintiffs-respondents.