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Eni Ammal Vs. Soosai Michael Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1978)1MLJ146
AppellantEni Ammal
RespondentSoosai Michael Mudaliar
Cases Referred and Motilal v. Karrabul
Excerpt:
- .....a half share and also for her maintenance on a charge of certain properties, including the present suit properties, impleading the mortgagee mayilerumperumal as the second defendant in the suit. she obtained a preliminary decree for partition and maintenance at rs. 15 per mensem on a charge of the suit properties subject to the suit under exhibit a-1 on 9th july, 1956 and she obtained the final decree, exhibit a-7, on 5th august, 1957. subsequently she filed e.p. no. 430 of 1966 and brought the suit properties to sale for arrears of maintenance due to her under the decree in o.s. no. 168 of 1955 and purchased the property herself subject to the othi under exhibit a-1 under the sale certificate, exhibit a-3 and obtained delivery of symbolical possession of the property under exhibit a-4.....
Judgment:

Varadarajan, J.

1. The plaintiff, who succeeded in the trial Court but lost before the lower appellate Court, is the appellant. She filed the suit for redemption of an othi under Exhibit A-1 dated 6th May, 1955 executed by her husband Mayakrishna Konar in favour of one Mayilerumperumal. Mayakrishna executed a settlement deed dated 21st April, 1964 in favour of the appellant and subsequently cancelled it and deserted her. Thereafter he executed an othi deed, Exhibit A-1, dated 6th May, 1955 in favour of Mayilerumperumal. The appellant filed O.S. No. 168 of 1955 in the District Munsif's Court, Ambasamudram, against her husband Mayakrishna for partition and separate possession of a half share and also for her maintenance on a charge of certain properties, including the present suit properties, impleading the mortgagee Mayilerumperumal as the second defendant in the suit. She obtained a preliminary decree for partition and maintenance at Rs. 15 per mensem on a charge of the suit properties subject to the suit under Exhibit A-1 on 9th July, 1956 and she obtained the final decree, Exhibit A-7, on 5th August, 1957. Subsequently she filed E.P. No. 430 of 1966 and brought the suit properties to sale for arrears of maintenance due to her under the decree in O.S. No. 168 of 1955 and purchased the property herself subject to the othi under Exhibit A-1 under the sale certificate, Exhibit A-3 and obtained delivery of symbolical possession of the property under Exhibit A-4 in E.A. No. 39 of 1968. Mayilerumperumal, the mortgagee under Exhibit A-1, had assigned the othi right in favour of the appellant after the date of the maintenance decree, under Exhibit B-4, dated 17th March, 1958. Subsequent to the maintenance decree the respondent, in execution of a money decree obtained by him against the appellant's husband Mayakrishna in C.S. No. 92 of 1958 on the file of the Village Panchayat Court, North Veeravanallur, brought the properties to sale in E.P. No. 85 of 1960 and purchased them himself under the sale certificate, Exhibit B-1, dated 3rd June, 1960 and took delivery of possession of the properties on 10th August, 1960 under Exhibit B-2. The assignment under Exhibit B-4 and the Court sale under Exhibit B-1 purusant to the decree in C.S. No. 85 of 1960 were affected by lis pendens and were not binding on the appellant. The Court sale under Exhibit B-1 cannot have any priority over the Court sale under Exhibit A-3, held under a charge decree. The appellant is, therefore, entitled to redemption of the usufructuary mortgage covered by Exhibit A-1.

2. The respondent's defence was that he is a bona fide purchaser for value without notice of the charge created by the decree in O.S. No. 168 of 1955 and that the sale in favour of the appellant is long after the Court sale in favour of the respondent and it cannot prevail against the latter. The othi under Exhibit A-1 had ceased to exist by reason of the purchase of the equity of redemption in the properties in the Court sale under Exhibit B-1 by the respondent. There is, therefore, no othi to be redeemed and the appellant is not entitled to redemption.

3. The trial Court found that the respondent is not a bona fide purchaser for value without notice of the charge on the ground that the assignment deed, Exhibit B-4, refers to the decree in O.S. No. 168 of 1955, and that the respondent, the purchaser in execution of a simple money decree, is bound by the charge, and the sale under Exhibit B-1 has not put an end to the othi. On these findings the trial Court decreed the suit with costs.

4. On appeal, the learned Subordinate Judge, Tirunelveli, found that the doctrine of lis pendens does not apply to involuntary sales, that the respondent is a bond fide purchaser for value without notice of the charge and the sale in his favour prevails over the sale in favour of the appellant and that the appellant has no right to redeem. He, therefore, allowed the appeal with costs and dismissed the suit.

5. It is not possible to agree with the learned Subordinate Judge that the doctrine of lis pendens under Section 52 of the Transfer of Property Act, does not apply to involuntary sales. The learned District Munsif has relied upon the decisions in Sathaluru Seetharamanujacharyulu v. Narra Venkatasubbamma and Anr. : AIR1930Mad824 , and Kedarnath v. Shenonarain : [1970]2SCR204 . in his judgment for coming to the conclusion that the doctrine of lis pendens has been made applicable even to involuntary sales. A Bench of this Court has held in the first of these decisions that a simple money decree creditor of a joint Hindu family has no priority over the charge granted by the decree in the absence of fraud or collusion and, therefore, the 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 the simple money decree binding on the family was not entitled to priority over another auction-purchaser of such property in proceedings taken to execute such maintenance decree. This observation would apply with full force to the facts of the present case where the appellant has purchased the properties in execution of a charge decree which she had obtained against her husband Mayakrishna Konar, through whom the respondent claims the property by right of purchase in Court-auction sale held in execution of a simple money decree which he had obtained against him in a civil suit instituted in a Village Panchayat Court. The Supreme Court has observed in Kedarnath v. Shenonarain : [1970]2SCR204 , paragraph 17, thus:

Lastly it was contended that the sale was by Court-auction and the doctrine of lis pendens would not apply to such a sale. This point was considered in Samarendra Nath Singh v. Krishna Kumar Nag : [1967]2SCR18 by one of us (Shelat, J.), and it was observed as follows:.The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Manohar (1887) 15 Ind. App. 97 : I.L.R. 15 Cal. 756 where the facts were almost similar to those in the instant case. It is true that Section 52, strictly speaking, does not apply to involuntary alienations such as Court sales but it is well established that the principle of lis pendens applies to such alienations. See Nilkant v. Suresh Chandra (1885) 12 Ind. App. 171 : I.L.R. 12 Cal. 414 and Motilal v. Karrabul-Din (1897) 24 Ind. App. 170 : I.L.R. 25 Cal. 179 : 1 C. W.N. 639.

6. In view of these two decisions, it is not possible to agree with the learned Subordinate Judge that the principle of the doctrine of lis pendens does not apply to involuntary sales and that merely because the respondent was not eo nomine party to the decree in O.S. No. 168 of 1955 which created a charge for the maintenance of the appellant on the suit properties, he is not bound by that decree. The learned Subordinate Judge failed to take note of the fact that the appellant's husband, through whom alone the respondent is claiming the properties, was a party to that decree and the respondent would, therefore, be equally bound by that decree. It is idle on the part of the respondent to contend that he is a bono fide purchaser for value without notice of the charge for the charge had been prayed for even before the date of his suit. The Execution Petition No. 85 of 1960 was filed by the respondent clearly after the charge had been created over the properties by the decree in the maintenance suit. There is, therefore, no question of the sale under Exhibit B-1 in favour of the respondent prevailing over the sale in favour of the appellant under Exhibit A-3 and the suit mortgage ceasing to exist. The appellant is, therefore, entitled to redemption.

7. The second appeal is, therefore, allowed with costs throughout and the suit is decreed. No leave.


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