Skip to content


Fulkumari Dassi and ors. Vs. Jogendra Chunder Ghose - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal77
AppellantFulkumari Dassi and ors.
RespondentJogendra Chunder Ghose
Cases ReferredKhan Ali v. Pestonji Edulji Guzdar
Excerpt:
hindu law - maintenance--widow's right to a share in lieu of maintenance, on a partition suit having been instituted--transfer of property act (iv of 1882), section 52--lis pendens. - francis w. maclean, k.c.i.e., c.j.1. this is a suit for the partition of certain properties which are mentioned in the schedule to the plaint--properties which belonged to one jagdis chunder sarkar, who died in the month of joist 1293, leaving him surviving his minor sons, the plaintiff and the defendants nos. 1, 2, 3, 4 and 5, and his widow, the defendant no. 6 and the defendant no. 7, who was his own mother. no question arises in relation to any share of the latter in the property. the suit was instituted on the 27th of august 1895, and summonses were served upon the defendants on the 14th september in the same year. in the interval, on the 12th september, the defendant no. 1 had, for valuable consideration, transferred his share in one of the properties treating (subject to what i will.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. This is a suit for the partition of certain properties which are mentioned in the schedule to the plaint--properties which belonged to one Jagdis Chunder Sarkar, who died in the month of Joist 1293, leaving him surviving his minor sons, the plaintiff and the defendants Nos. 1, 2, 3, 4 and 5, and his widow, the defendant No. 6 and the defendant No. 7, who was his own mother. No question arises in relation to any share of the latter in the property. The suit was instituted on the 27th of August 1895, and summonses were served upon the defendants on the 14th September in the same year. In the interval, on the 12th September, the defendant No. 1 had, for valuable consideration, transferred his share in one of the properties treating (subject to what I will say in a moment) that share as a one-sixth share, to the defendant No. 8, who was subsequently on the 5th December 1895 made a party to the suit.

2. The real question in dispute is whether the defendant No. 8 is entitled to a one-sixth share, or only to a one-seventh share in the property sold to him, the contention on the part of the mother (defendant No. 6)' being that, on partition, she is entitled to a share, equally with her six sons, which would render the estate divisible into seven shares, and not six. The case came on for trial, and the learned Subordinate Judge of the 24-Pergunnahs delivered his judgment on the 21st of September 1896, a judgment which was adverse to the contention of defendant No. 8. The case was then carried on appeal to this Court, and on the hearing of that appeal, this Court held that there must be a remand to have the following further issues tried, namely: (1) whether the defendants Nos. 1 and 8, or either of them, knew the fact of the institution of the suit before the execution of the first conveyance in favour of defendant No. 8 by defendant No. 1; and (2) whether, exclusive of the property covered by the earlier of the two conveyances executed by defendant No. 1, in favour of defendant No. 8, there still remained property appertaining to the share of defendant No. 1 sufficient to contribute to the share of No. 6, and whether a partition can be effected, and, if so, into the way, so as to exclude the property covered by the said conveyance by treating it as allotted to the share of No. 1. These issues were referred for trial to the Court below, with directions to take any additional evidence which the parties might desire, and the Court below was to return its finding on these issues.

3. It is unnecessary to say anything about the finding on the second issue because it appears that the defendant No. 1 has parted with all his interest in the other properties to other purchasers, who are not parties to the suit, and so no practical effect can be given to the suggestion of contribution implied by that issue.

4. On the first issue, the Subordinate Judge has found that both defendant No. 1 and defendant No. 8 had notice of the present suit on the 12th of September.

5. I may point out, incidentally, that both defendant No. 1 and defendant No. 8 would appear to have entertained some doubt as to whether the former's share were really a sixth, for there is a covenant in the kabala that, if the vendor's statements to found to be untrue (one of which was that he was entitled to a one-sixth share) that is to say, that if it be afterwards found that his interest was less than the extent of interest which was there declared, he should in that case refund the consideration-money, in proportion to the extent by which the same might fall short.

6. It is urged for the appellant that, before a partition was actually effected, the defendant No. 1 had an absolute right to deal with his share, and to transfer that share to a purchaser for value free from any claim of his mother to a share on partition; and that the right of the mother to a share on partition is not an absolute or vested right, but a contingent right only, contingent on the partition being actually made. He further urges that the case is not within Section 52 of the Transfer of Property Act.

7. To this the mother (the respondent) replies, that, inasmuch as under the Hindu law of the Bengal School, which admittedly governs the present case, the mother would, if there were a partition, be clearly entitled to a share equal to that of her sons, the defendant No. 1 could not deal with his share so as to prejudicially affect his mother's right; that he could not transfer to a purchaser a larger interest than he himself had; and that, inasmuch as the transfer was effected after the institution of the suit, Section 52 of the Transfer of Property Act applied.

8. It is, I think, clear upon the authorities--I need only refer to the case of Hemangni Dasi v. Kedarnath Kundu Chowdhry, (.1889) I.L.R., 16 Cal., 758; L.R., 16 I.A., 115, and the case of Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 15 Cal., 292--that in the event of the sons partitioning the property, their mother is entitled to a share equal to their own respective shares, and that she takes this share in lieu of, or by way of provision for, her maintenance, for which the partitioned estate is already bound.

9. The appellant does not dispute, nor could he successfully dispute, this proposition of law, but he contends that there is no such right in the mother, unless and until a partition has actually taken place, and great reliance is placed upon certain passages in the judgment of Mr. Justice Dwarka Nath Mitter in the case of Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R. 61, and, without doubt, those passages do give support to the appellant's contention.

10. That learned Judge says: 'The learned Counsel for Doolaro has contended that, in the case before us, partition must be held to have actually taken place, and he cited a ruling of Her Majesty in Council to the effect that division by metes and bounds is not at all necessary to constitute partition under the Mitakshara.' And later on he says: 'It has been said that the question of maintenance is quite distinct from the question before us, but there can be no doubt that the share that is given to a Hindu mother at the time of partition is given to her for no other purpose than as a provision for her maintenance. She has no right to ask for maintenance after she has got such a share, and if a partition has been effected in this case, Golaba's suit for maintenance must have been dismissed on that ground alone. It is unnecessary, therefore, to decide whether Golaba had a right to alienate the share assigned to her by the principal Sudder Amin as her stridhan, under the Mitakshara law. Our finding is, that she had acquired no right to that share, as she died before partition had been actually made.' The last sentence indicates that the question there was one of succession, and that as the mother had died before any actual partition had been made, she had acquired no right to any share; and the Judge's remarks must be taken in connection with the case he was then dealing with, which is one substantially differing from the present, where a partition has actually been effected, which would undoubtedly give the mother a right to a share according to Mr. Justice Mitter's view, and when the question here is whether that right can be defeated by a transfer from one of the sons.

11. It is said for the appellant that Mr. Justice Mitter's view is endorsed by Mr. Justice Wilson in the case of Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 15 Cal., 292. There Mr. Justice Wilson cites the passage which I have just read, and he says: 'The Court seems to me here to lay down, and to lay down not by way of dictum or mere expression of opinion, but as the ground of decision, that when a mother takes a share on partition, her title arises from the partition alone, and that she had no pre-existing vested right except a right of maintenance.'

12. In that case again the question was one of succession; the respondent, however, does not put her case so high as that of a pre-existing vested right to a share, but she says she has an inchoate or quasi-contingent right which may ripen or crystallise into an absolute right, if and when, the partition takes place, which happened in the present case.

13. With respect to the case of Lakshman Ram Chandra Joshi v. Sattya Bhama Bai (1877) I.L.R., 2 Bom., 494, cited for the appellant, the true nature of that? suit is stated by Mr. Justice Wilson in the case of Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R. 15 Cal.,292 (313). It is not a case which bears directly upon the present, and though it is relied upon by the appellant there are passages in the judgment of Mr. Justice West which support the respondents' view. For instance, that learned Judge says at p. 508 of the report: 'The mother's ownership, which has according to this view been extinguished, revives again on a partition amongst her sons; their ownership in the meantime is complete.' But if there existed in the mother any such ownership, must not a purchaser from a son of his share--I am not speaking of a sale for the payment of the father's debts--purchase subject to that right? Mr. Justice Wilson does not share Mr. Justice West's view: he thinks that on partition an old right does not revive, but that a new right arises. However, the case of Lakshman Ram Chandra Joshi v. Sattya Bhama Bai (1877) I.L.R., 2 Bom., 494, is in its circumstances so different from the present that it cannot be regarded as an authority for the proposition for which the present appellant contends. If, as the authorities appear to establish (see per West, J., at p. 506 of the report of that case), the widow's maintenance, specially as against the sons, is a charge on the estate, a right in rem in the fullest sense adhering to the property into whatever hands it may pass, a right convertible, in the event of a partition, into a right to a share equal to that of sons, it is difficult to see upon what principle a son can so deal with his share as to defeat that right of his mother.

14. In my opinion defendant No. 8 cannot, as between the mother and himself, stand in a better position than his transferor defendant No. 1, and that, as on a partition defendant No. 1 would only be entitled to a seventh share, defendant No. 8 is not entitled to any more; in other words, he must be taken to have purchased, subject to the right of the mother, if there were a partition, to have a share allotted to her in lieu of her maintenance. There appears to me to be some analogy between this case and the principle of the case of Byjnath Lall v. Ramoodeen Chowdhry (1874) L.R., 1 I.A., 206; 21 W.R., 233, in the Privy Council, where it was held that, 'where the owner of an undivided share in a joint and undivided estate, mortgages his undivided share, he cannot by so doing affect the interests of the other sharers, and the persons who take the security, that is, the mortgagees, take it subject to the right of those sharers to enforce a partition, and thereby convert what is an undivided share of the whole into a defined portion held in severalty.'

15. But whether the view expressed above be or be not sound, it seems to me that the case is within Section 52 of the Transfer of Property Act. The transfer undoubtedly took place after the institution of the suit, and both parties to the transfer had notice of the suit. It is, however, urged for the appellant, that this is not a 'contentious suit or proceeding in which any right to immoveable property is directly and specifically in question' within the meaning of the section.

16. It is said upon the authority of the case of Radhasyam Mohapattra v. Situ Panda (1888) I.L.R., 15 Cal., 647, that a suit does not become 'contentious' until the summons has been served upon the opposite party, but no reason is assigned by the learned Judges for their conclusion. I am inclined to think this view proceeds upon some confusion between what is 'contentious,' and the exact point of time when a Us pendens is constituted. I should infer that the conclusion was arrived at by analogy to the English cases, which decide that, as between plaintiff and defendant, the service of the subpoena constitutes the Us pendens between them [see Bellamy v. Sabine (1857) De Gex and J., 566 (586). We are, however, relieved from going into the question as to the precise point of time when a lis pendens is Constituted in this country whether, as between plaintiff and defendants or as between co-defendants, for the section says: During the active' prosecution * * * of a contentious suit, etc., etc.,' which indicates with reasonable clearness that, whilst the suit is being actively prosecuted, the property is not to be transferred or dealt with so as to affect the rights of any other party thereto, under any decree or order which may be made therein. It is not suggested that this suit was not being actively prosecuted when the transfer was executed. In this view I fail to see how the case cited is any authority as to what is or what is not a 'contentious' suit. A contentious suit is a suit involving contention, and it is perhaps difficult to predicate of any suit, at the moment of its inception, whether or not it is likely to be contentious; but if, in point of fact, it turns out to be a suit which was contested, as is the case here, then, to my mind, the suit is a contentious one and the section applies. It seems to me that in order to appreciate whether the section applies, we must regard the event, and in this case the event showed a contested suit.

17. We are referred, however, to the case of Khan Ali v. Pestonji Edulji Guzdar (1896) 1 C.W.N., 62, as an authority for the proposition that this section does not apply to a partition suit upon the ground that it is not a suit or proceeding, 'in which any right to immoveable property is directly or specifically in question.' I scarcely think the Court intended to lay down any such wide proposition. The Chief Justice says: I do not think that section applies to a suit for partition in which the shares of the parties and the rights of the parties to the shares are not disputed.' Here, however, the shares of the parties are disputed, so the present case is distinguishable.

18. I have already alluded to the case of Bellamy v. Sabine which has been relied upon by both sides, and which has been adopted and followed in this Court in the case of Raj Kishen Mookerjee v. Radha Madhub Haldar (1874) 21 W.R., 349. It is not pertinent to the case before us save as enunciating, according to the views held by the Courts in England, the foundation of the doctrine as to the effect of lis pendents.

19. For these reasons the appeal fails, and must be dismissed with costs.

Banerjee, J.

20. I agree with the learned Chief Justice in thinking that the judgment of the Court below is right. The suit out of which this appeal arises was brought by one of six brothers against the other five brothers, their mother and their grandmother, for partition of the property, moveable and immoveable, inherited by the brothers from their father, after determining the question whether the mother and the grandmother are entitled to a share, or to maintenance only; and the prayer of the plaintiff was for division of the property by metes and bounds into eight, seven, or six shares, according as in the judgment of the Court the mother and the grandmother both, or only one of them, or neither of them, had a right to a share.

21. The defence of the defendant No. 1 was to the effect that the mother was not entitled to any share as she had property of considerable value given to her by his father; that, in regard to property No. 1, the defendant had sold his one-sixth share to Jogendra Chunder Ghose, and that in regard to that property there could not be any partition except under certain rules which had been previously agreed to between the parties. Upon the written statement of the defendant No. 1 being filed Jogendra Chunder Ghose was added as a defendant in the case, being the defendant No. 8, and his defence was that he was rightfully entitled to the property purchased by him, that is the one-sixth share of the defendant No. 1 in property No. 1, and that the defendant No. 6, the mother, could not claim any share thereof. I need not consider the other objections taken by the defendant No. 8 in his written statement.

22. The Court below overruled the objections of the defendants Nos. 1 and 8 and made a decree for partition, directing that the grandmother, the defendant No. 7, should obtain maintenance at a certain rate; that the defendant No. 6, the mother, should have a share in the property; that the property should be divided into seven equal shares, and that the share of the defendant in property No. 1 should be assigned to the defendant No. 8.

23. Against this decree, the defendant No. 8 preferred an appeal. At the first hearing of that appeal, it appearing to this Court essential to the right decision of the case that certain issues, which had not been considered in the Court below, should be framed and tried, namely (1) whether the defendants Nos. 1 and 8, or either of them, knew the fact of the institution of the suit before the execution of the first conveyance in favour of defendant No. 8 by defendant No. 1; and (2), whether exclusive of the property, covered by the earlier of the two conveyances executed by the defendant No. 1 in favour of defendant No. 8, there still remained property appertaining to the share of defendant No. 1 sufficient to contribute to the share of defendant No. 6, and whether a partition can be effected, and, if so, in what way, so as to exclude the property covered by the said conveyance by treating it as allotted to the share of defendant No. 1, the case was remanded for a finding on those issues.

24. The Court below has found that both the defendant, No. 1, and the defendant No. 8, were aware of the fact of the institution of the suit before the execution of the conveyance in question, and that there is not enough property belonging to the share of defendant No. 1, excluding the property covered by the first conveyance in favour of defendant No. 8, to contribute to the share of defendant No. 6. It is now contended on behalf of the appellant that the Court below is wrong in holding that the defendant No. 6 is entitled to any share in the property covered by the conveyance executed in favour of the appellant by the defendant No. 1, that is, in a one-sixth of an 8 annas share which was owned by the father of defendant No. 1, and the grounds upon which this contention is based are two, the first ground being, that as the right of the defendant 6, the mother of the plaintiff, and of the defendants Nos. 1 to 5 to claim a share arises only upon partition being made of their joint paternal property by her sons, and as previous to such partition the defendant No. 1 had transferred his share in property No. 1 to defendant No. 8, he must be taken to have acquired that share free from the claim of the defendant No. 6, and the second being, that the additional reason upon which the Court below has based its decision in favour of defendant No. 6, namely, that the defendant No. 8 is bound by the doctrine of lis pendens, is an erroneous reason, the doctrine of lis pendens not being applicable to this case.

25. I shall deal with these two contentions separately.

26. In support of the first contention, it is argued that as the right of the mother to claim a share in her husband's estate arises only upon partition by her sons, and as no such partition had been made until after the alienation in favour of defendant No. 8, the purchase by the defendant No. 8 of a one-sixth share from defendant No. 1 cannot be held to have been subject to the right of defendant No. 6, which had not come into existence at the date of the alienation. It is further urged that the mother's right to a share in her husband's estate is not in the nature of an absolute right to the estate, but is only in lieu of, or by way of provision for, the maintenance for which the estate is liable, and as a purchaser from one of the sons has been held not to be bound by any claim of the widow for maintenance, no more can he be bound by her claim for a share on partition which is only in lieu of, and as a provision for, such maintenance. And in support of this argument, the cases of Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R., 61; Hemangini Dasi v. Kedarnath Kundu Chowdhry (1889) I.L.R., 16 Cal., 758: L.R., 16 I.A., 115; Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 15 Cal., 292; Lakshman Ram Chandra Joshi v. Satya Bhama Bai (1877) I.L.R., 2 Bom., 494; Adhiranee Narain Coomary v. Shonamalee Pat Mahadai (1873) I.L.R., 1 Cal., 365, and Barahi Debi v. Debkamini Debi (1892) I.L.R., 20 Cal., 682, have been relied upon.

27. The right of the mother to a share on partition is founded upon the following passage in the Dayabhaga: 'When partition is made by brothers of the whole blood after the demise of the father an equal share must be given to the mother. For the text expresses 'the mother should be made an equal sharer.'' Ch. II, Sec. III, para. 29.

28. With reference to the above passage in the Dayabhaga it has been held, and it must now be taken as settled law, that the mother's right to claim a share arises only when her sons come to a partition, in other words, that she cannot enforce her claim to a share so long as her sons remain joint and do not ask for partition. But there is nothing said in this passage, or in any other authoritative text of Hindu law, as to the mother's right to a share on partition being so absolutely non-existent before partition, that it may be defeated by any of her sons alienating his share before coming to a partition.

29. In my opinion, the correct view to take of this right would be to hold that it is an inchoate right as long as no partition is come to amongst the sons, and it becomes actually enforceable only when the sons come to a partition; or in other words, that the right, when it becomes enforceable by reason of a partition being come to among the sons, is enforceable, not only as against the sons, and as regards so much only of the joint property as at the date of partition is in the hands of the sons, but also as against any person deriving title from any of the sons, and as regards the property to which they may have so derived title, subject to certain qualifications and limitations which it is unnecessary to discuss in detail in this case, having regard to the facts found by the Court below, the correctness of which has not been practically impugned. It must be taken to be a correct proposition of law that no owner of property can convey to any person a higher right than what he himself possesses except under certain special circumstances. The purchaser, therefore, of joint family property from a member of a joint Hindu family must take it subject to the rights of his vendor's co-sharers to demand partition and subject also to such rights of other persons who were not strictly speaking co-sharers with the vendor at the date of the alienation, as may arise under the Hindu law upon partition.

30. The correctness of this general proposition, which is supported by the case of Bilaso v. Dinanath (1880) I.L.R., 3 All., 88, cannot, 1 think, be disputed. The case of Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R., 61, relied upon by the learned Vakil for the appellant, does not really conflict with the view I take. The point actually decided with reference to the mother's share in that case was that such share could not be claimed by a devisee from the mother when she died after the decree of the first Court in a partition suit, but before the hearing of the appeal from that decree, and that was a point very different from the one that arises in this case. Nor is the case of Barahi Debi v. Debkamini Debi (1892) I.L.R., 20 Cal., 682, in point, as it was held with reference to the facts of that case that there was no partition of 'the bulk of the family estate,' and that what was sought to be divided was not 'anything more than a small outlying piece of property' of which one of the sons had sold his share to the plaintiff.

31. The second branch of the first contention is that as the mother's right to a share has been held in two of the cases cited, namely, Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 15 Cal, 292, and Hemangini Dasi v. Kedarnath Kundu Chowdhry (1889) I.L.R., 16 Cal., 758: L.R., 16 I.A., 115, to be a right that arises in lieu of or by way of a provision for her maintenance, such a right must be subject to the same limitation as the right to maintenance is, and as the right to maintenance is, according to the cases of Adhiranee, Narain Coomary v. Shonamalee Pat Mahudai (1873) I.L.R., 1 Cal., 365, and Lakshman Ram Chandra Joshi v. Satya Bhama Bai,(1877) I.L.R., 2 Bom., 494, not enforceable against a purchaser from any of the sons, the right to a share on partition must in the same way be held not to be enforceable against such a purchaser. I am of opinion that this argument is not sound. For the reasons for the decision in Lakshman Ram Chandra Joshi's case and in that of Adhiranee Narain Coomary against the widow's claim in regard to maintenance are inapplicable to her claim to a share on partition. I should, in the first place, observe that though in the two cases of Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 16 Cal., 292, and Hemangini Dasi v. Kedarnath Kundu Chowdhry (1889) I.L.R., 16 Cal, 758: L.R., 16 I A., 115, the mother's claim to a share has been held to be a claim in lieu of or as a provision for her maintenance, in neither of those two cases did the point arise for decision which we have now to consider, and it was only incidentally that the observations, upon which the learned Vakil for the appellant relied, were made.

32. Now the main reason upon which the decision in the case of Lakshman Ram Chandra Joshi v. Satya Bhama Bai, so far as it touches the present question, turned is incorporated in the following passage in the judgment of Mr. Justice West: 'If then a mother foregoing her claim to a separate provision out of the personal property resides with her sons or step-sons and is maintained by them she must submit, I think, to their dealing with the estate.'

33. Although that observation may hold good as regards her claim for maintenance in respect of which she may obtain a decree fixing its amount and declaring it to be a charge on any definite property, and although her not doing so may be treated as an omission on her part, the consequence of which is to disentitle her to enforce her claim against a purchaser in good faith from any of her sons, could the same thing be said in regard to her claim to a share upon partition? She cannot enforce such a claim so long as her sons do not come to a partition; she cannot ask for any decree declaring her right to a share in any particular property until a partition is come to by her sons; and therefore, though consequences adverse to her claim for maintenance may arise from her omission to do what she might have done to place her claim on a secure basis, that is a consideration which is wholly inapplicable to her right to a share upon partition.

34. Another reason given [see Adhiranee Narain Coomary v. Shonamalee Pat Mahadai (1873) I.L.R., 1 Cal., 365] for holding that a widow's claim for maintenance as a charge is not enforceable against a purchaser from any of the sons is, that it would be inconvenient to allow her to enforce such a charge by reason of the uncertainty of the claim and by reason of many other similar claims resting upon a similar ground. These also are reasons which would be inapplicable to the mother's claim to a share upon partition. Such a claim is definite in its nature, her share being defined as being equal to that of one of her sony, and the claim to a share being capable of enforcement only by the mother and not by any other member of the family. The reasons, therefore, applicable to the case of a claim for maintenance are inapplicable to the mother's claim to a share upon a partition.

35. The case of Barahi Debi v. Debkamini Debi (1892) I.L.R., 20 Cal., 682, as I have already remarked, does not call for any detailed discussion as the facts of that case were different, and as the learned Judges in their judgment observed: 'Of course every ease must be determined by its own facts, and there may well be cases in which the main body of the family property is divided, leaving only a small portion joint, and in such a case no doubt the sons would have partitioned the property among themselves, and the right of the widow to have a share set apart for her maintenance would come into existence.' On these grounds, I am of opinion that the first contention urged on behalf of the appellant is untenable.

36. That being so, it is not necessary to discuss the second point at any great length. I would only observe that no valid reason has been shown for our holding that the ease does not come within the scope of Section 52 of the Transfer of Property Act. It was urged that there was no contentious suit, at any rate not until the service of summons on the defendant No. 1, and as the transfer in favour of the appellant was made before the service of summons on the defendant No. 1, the alienation in his favour cannot be affected by Section 52. But, as has been pointed out in the judgment of the learned Chief Justice, a suit does not become contentious merely by service of summons on the defendant. Whether or not a suit is contentious must depend on whether or not it is really so. The expression 'contentious suit' is, I think, used in contradistinction to a friendly suit in which there is no contest, and the parties bring the suit only to obtain the decree of a Court of Justice, declaring their rights as to which they are themselves in perfect agreement. Was that the nature of this suit? Clearly not. The plaint itself raised the question as to whether or not the mother, the defendant No. 6, was entitled to a share; it invited the Court to determine that question; and defendant No. 1 denied the mother's right to a share. Clearly, therefore, there was hare a contentious suit in which the right to immoveable property, that is property No. 1 in the schedule to the plaint, was directly and specifically in question.

37. Great reliance was placed on the case of Radhasyam Mohapattra v. Sibu Panda (1888) I.L.R., 15 Cal., 647, as showing that there could not be a contentious suit or proceeding until the service of summons on the defendant. No doubt there is a passage in the judgment of the learned Judges who decided that case which lends some support to this contention; but having regard to the facts of that case, I am of opinion that it is clearly distinguishable from the present. The facts are thus stated in the judgment: 'As a matter of fact the defendant No. 2 did not appear to defend the suit. She put in a written statement in which she alleged that she had parted with all her interest in the property to the plaintiff in this suit by virtue of the conveyance to him of the 5th of October 1883, and she asked that he might be made a party to that suit. He was not, as a matter of fact, made a party to that suit, and, as I have said, judgment was given against defendant No. 2, who did not appear to defend the suit. This is the lis pendens which the defendant No. 1 seeks to take advantage of.' Clearly, therefore, there was no contentious suit there; and I may add that the same remarks apply to the case of Khan Ali v. Pestonji Edulji Guzdar (1896) 1 C.W.N., 62. There also, so far as one can gather from the judgment, it proceeds upon the ground that there was no contentious suit during the pendency of which the alienation in question was made. The second contention of the appellant, therefore, also fails.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //