1. A suit for partition was brought by Jagat Chander Munshi, predecessor of defendants 8 and 9, in which the other co-sharers were made defendants, and in the plaint the plaintiff admitted that the Biswas defendants had a share in the property.
2. At an execution sale, a 1/12th share, being one-half of what the Biswas defendants claimed to have held, was sold on the 10th February 1893 and was bought by the plaintiff who, at a private sale, purchased also the remaining portion of the share on the 6th July of the same year.
3. On the 19th July the defendants Nos. 3, 4 and 5 who were co-sharers of the property under partition, put in a written statement, in which they denied that the Biswas defendants had any share.
4. On the 16th February 1894, what is termed a preliminary decree was passed by the Court specifying the shares of the several proprietors of this property and declaring that the Biswas defendants had no share at all. It seems that in these proceedings the Biswas defendants never entered appearance. We cannot learn from the learned pleaders engaged before us whether suit proceeded further to a partition by metes and bounds. We understand that by the use of the terms 'preliminary decree defining the shares,' the object of the suit was to obtain a complete partition.
5. On the 14th March 1894, that is, shortly alter the decree declaring the shares of the several owners of this property had been, passed, the plaintiff applied to he made a party to that suit and her application was refused. Against what is termed the preliminary decree the Biswas defendants appealed, but their appeal was dismissed by the District Judge on the 9th August 1894. The plaintiff now sues for possession of the share purchased by her in, execution of the decree and also by private sale from the Biswas defendants and it has been found by both Courts that, notwithstanding the decree in, the partition suit, the Biswas defendants had a 1/6th share, which has passed to the plaintiff.
6. The only objection raised before us in second appeal is that the suit is barred by reason of the proceedings in the partition suit, inasmuch as, under Section 52 of the Transfer of Property Act the transfer being made during the active prosecution of a contentious suit, in which the right to the immoveable property was directly and specifically in question, could not affect the rights of the other co-sharers therein.
7. The first question that arises is how far the proceedings in that suit can be regarded as contentious so as to affect the transfers made to the plaintiff. The first transfer was, as has been held by the Lower Court, on the 10th February 1893 at an execution sale before the institution of the partition suit, but it is contended that, inasmuch as this sale was not confirmed until a later date, that is, until the 14th of April after the institution 'of the partition suit, there was no valid transfer and, therefore, the transaction comes within the terms of Section 52, The title to property sold in execution of a decree vests in the purchaser from the date of his receiving a certificate from the Court after the sale has become absolute and not before. (Section 316 of the Code of Civil Procedure.)
8. The second transfer by private sale no doubt took place after the institution of the partition suit.
9. It is contended on behalf of the plaintiff that there was then no contentious suit before the Court. The case then before the Court was on a plaint, in which the title of the Biswas was admitted and it was not contentious, until the written statements of the objecting defendants had been filed, when only it became contentious, On the other hand, it is stated by the learned pleader for the appellants that of necessity a suit for partition must be contentious and that consequently Section 52 of the Transfer of Property Act would apply to any transfer made after the plaint had been filed. The case of Jogendra Chander Ghosh v. Fulkumari Dassi (1899) I.L.R. 27 Calc. 77 has been referred to as containing a definition by the learned Judges of the meaning of a contentious suit. That case is not in point, because the plaint as shown by the learned Judges itself indicated that the suit would be contentious assets object was to have determined a specific share, which was doubtful and in dispute. The expression, we find, is also defined by Section 253A of the Indian Succession Act (X of 1865) as amended by Act VI of 1881, Section 7 in respect of proceedings for grant of probate or letters of administration and we think that that definition may be usefully applied to the present case. The explanation declares that by contention is understood 'the appearance of any one in person or by his recognized agent or by a pleader duly appointed to act on his behalf to oppose the proceeding.' In this view it seems to me that the suit did not became contentious, until the written statement was put in by the opposing defendants disputing any right, title or interest of the Biswas defendants in the property under partition as in the plaint, they were described as parties to the partition as co-sharers, and I further think that, having regard to the fact the plaintiff, the transferee, was not allowed to become a party to that suit, she cannot property be regarded as prejudiced by the result.
10. In my opinion, the suit is not barred by reason of Section 52 of the Transfer of Property Act.
11. The plaintiff was no party to the partition suit and was even not allowed by the Court to become a party to it, although she had succeeded to whatever right, title or interest was with the Biswas defendants, who were parties, and consequently her rights are not affected by the proceedings in the partition suit.
12. Both appeals are accordingly dismissed with costs.
13. I agree that the appeals must be dismissed. By Section 52 of the Transfer of Property Act it is provided that 'during the active prosecution in any Court of a contentious suit or proceeding in which any right to immoveable property is directly and substantially in issue, the property in question cannot be transferred so as to affect the right of any other party thereto under decree or order, which may be made therein.'
14. In the present case the property was transferred after a suit for partition in respect of it had been commenced, but the plaintiff in that suit admitted the defendant transferors' right on partition, to the share which the present plaintiff now claims.
15. There was at the time of the transfer no contention between these parties to the suit and in fact there fever was any contention between the plaintiff and the defendant transferors in that suit.
16. That being the case I do not think the claim of the present plaintiff is affected by the order in the partition suit made against their then transferors in favour of co-defendants, who had made no claim against the transferors, until after the transfer.
17. In the case of Bellamy v. Sabine (1857) De G. & Jones, 566 Lord Justice Turner points out the difficulties there are in the application of the doctrine of respondents as between co-defendants and pertinently asks when the respondents between thorn is to commence.
18. Whatever may be the answer to that question I think it is clear that the Lispendens cannot be said to commence, until the co-defendant has by his pleading contested the rights of the other defendant.