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Ramdhone Bulakidas Vs. Kedarnath Mohata and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1938Cal1,173Ind.Cas.828
AppellantRamdhone Bulakidas
RespondentKedarnath Mohata and ors.
Cases ReferredPrice v. Price
- favour of the applicant in suit no. 748 of 1924.5. that application was made in the partition suit, suit no. 1. it was not opposed by a. it was not upon notice to the mortgagee. an order was made on 12th april 1932. the order continues to the effect that:the commissioner under writ of commission do proceed on that basis, (that is to say the basis of the decree in the partnership suit being taken into account) and in equalizing the shares of the parties he will be at liberty to take the same into consideration.6. in pursuance of this order the commissioner, mr. remfry, allotted the whole of the half share of a in the premises in question to b, and it is to get over this allotment of a's share to b that this suit is filed. before i deal with the question of law, i will try and analyse.....

Ameer Ali, J.

1. This suit turns upon a question of lis pendens. The short facts are as follows : Counsel were each good enough to hand me a list of dates. That supplied to me on white paper, I think by Mr. Chatterjee, is in tabular form, and may remain with the record as showing in detail the position with which I have to deal. I only propose to state the essentials. We are concerned with four suits : (1) Suit No. 31 of 1924 filed on 3rd January 1924, which has been referred to as the partition suit, although in point of fact it was filed by the plaintiff for a declaration that the property belonged wholly to him. It became in substance, owing to the rejection of the plaintiff's contention, a suit for partition of the properties mentioned in Schedule A to the plaint : see pages 5, 7, 17 and 19 of the agreed brief of documents. These references show that the defendant did not accept the list of properties in Ex. A as a complete list of the properties to be partitioned. The premises with which we are concerned in this suit, No. 6, Sikdarpara Lane, is the first item in Ex. A; (2) Suit No. 748 filed on 11th March 1924 being a suit for dissolution of partnership; (3) Suit No. 967 of 1929 filed on ,10th May 1929 being a mortgage suit upon the mortgage of a half share of No. 6, Sikdarpara Lane; (4) Suit No. 1615 of 1933 filed on 20th July 1933 being a declaratory suit for the purpose of establishing that the mortgage referred to prevails over the rights of the defendant Radha Bai under a certain order made in Suit No. 1, the partition suit.

2. The following short history will further explain the nature of the suits. Radhakissen and Gopikissen, two brothers governed by the Mitakshara School of Hindu law, carried on a certain business, which I will call Y. Their shares in the partnership were 9 and 7. I will call Radhakissen and Gopikissen, and after Gopikissen's death his widow Radha Bai, respectively A and B. Gopikissen left a will under which his widow inherited. A and B out of the profits of Y purchased certain properties, in particular the properties set out in Schedule A, which I will call X. The immovable properties are X and the business is Y. The first point to notice is that X and Y are distinct. X was bought with the profits of Y, it is true, and the business Y might equally well have been financed from the income of the properties. But they are distinct classes of property. The property X is not the assets of the business Y. No such case has been made.

3. The next stage is that A in Suit No. 1 alleged that he and B are co-parceners in X, and that it is joint family property and his prayer is for a declaration to that effect, which would exclude the widow of Gopikissen, whom I will now call B, from any right in X. The suit was tried by Chctzner J. who held against A to the effect that there had been already a partition between A and B, and that at the time of Gopikissen's decease A and B were co-owners with equal shares in the immovable property X. As a result, the widow of Gopikissen, B, was entitled to a half share. A preliminary decree was passed in that suit for partition in favour of the defendant B. That preliminary decree was dated 10th December 1924. It declared A and B each to be entitled to a half of X and directed the usual enquiries, including an inquiry as to what the joint properties consisted of : see p. 65 of the agreed brief. Then came the proceedings before the Commissioner, Mr. Remfry. But before these were entered upon, Suit No. 2, the partnership suit, had been filed by B against A. This was a partnership suit for dissolution of the trading partnership Y. Before those proceedings in No. 2 had culminated in a preliminary decree, the enquiry in the partition suit was taken up, and on 11th September 1925, and this is a fact strongly relied upon by the plaintiff in this suit-at a meeting before the Commissioner the attorney for B mentioned the pendency of the partnership suit, and there is noted an agreement to this effect that the 'subject matter of Suit No. 2, the partnership suit, should be excluded for the present'. On 2nd March 1926 the preliminary decree in the partnership suit was passed. In this suit again, A Radhakissen failed. He had attempted to set up a discharge by Gopi-kissen prior to his death. He failed, and an ordinary preliminary decree for winding up the partnership was passed and accounts were taken.

4. Pending the taking of those accounts on 6th May 1927, A mortgaged his half share in the premises I have mentioned, that is to say part of X to the present plaintiff for the sum of Rs. 20,000. On 8th December 1930, as a result of accounts in the partnership suit, a final decree was passed against A in favour of B for the sum of Rs. 1,17,000. B having thus won in the partnership suit, then sought to have her rights made effective in the partition suit, and on 11th May 1931 {see pp. 49 and 50 of the agreed brief) there is a record of a further discussion before the Commissioner from which we find that the attorney for B is arguing that she is entitled to have this decree for Rs. 1,17,000 'brought into this suit' so that she could have a right of set-off against Radhakissen A and make it effective against the share which would be allotted to Radhakissen. The result of that discussion was that the Commissioner refused to deal with the matter without a special order. B therefore applied to the Court for an order that the Commissioner of partition be at liberty to take into account the decree made in favour of the applicant in Suit No. 748 of 1924.

5. That application was made in the partition suit, Suit No. 1. It was not opposed by A. It was not upon notice to the mortgagee. An order was made on 12th April 1932. The order continues to the effect that:

The Commissioner under writ of commission do proceed on that basis, (that is to say the basis of the decree in the partnership suit being taken into account) and in equalizing the shares of the parties he will be at liberty to take the same into consideration.

6. In pursuance of this order the Commissioner, Mr. Remfry, allotted the whole of the half share of A in the premises in question to B, and it is to get over this allotment of A's share to B that this suit is filed. Before I deal with the question of law, I will try and analyse the position as regards the constitution of the suits. The position seems to me to be this. In attempting this analysis I am anticipating the contention on the part of the defendant, relying upon the principle of lis pendens, that notwithstanding the precise form of the plaint in the partition suit and the preliminary decree, nevertheless, in substance, the partnership matters could have been included in those proceedings.

7. First of all (and I shall express my view by the symbols that I have already mentioned) that had X been the assets of Y, that is to say, had the immovable property been partnership assets, there is no question but that there could have been one suit in respect of both Y and X. In substance that would have been purely a partnership suit. Secondly, had Y been a co-parcenary business and X been either co-parcenary or co-owned property, there could have been one partition suit both in respect of X and Y. I am not forgetting that so far as the co-parcenary business is concerned, this would have involved, or might have involved, certain accounts or investigations ostensibly similar to the accounts or inquiries which are involved in a partnership suit. But in principle it would not be a partnership suit, and in point of fact, this being a Mitakshara family, as I understand the law, there would not have been any directions for taking past accounts in the partition of the co-parcenary business. In principle it would have been a pure partition suit.

8. As things are, logically, two suits were necessary. (I say logically for reasons which I will explain in a moment.) One, for the winding-up of the business with accounts appropriate to a contractual partnership, accounts inter se between the partners including past accounts, accounts of debts to outsiders, and ultimately a sale of the remaining assets, a division of the net assets if any, and failing assets a decree as between the two partners, an event which in fact took place, and, other things being equal, an event which could not have taken place in a partition of a co-parcenery business. Another, for partition of co-owned properties, in which accounts if any, are, and inquiries are of a very different nature. In the preliminary decree in this partion suit, Suit No. 1, in fact I find no direction for accounts. Again, if I have appreciated the law correctly, there could not, other things being equal, have been general accounts, as between A and B. I am not disputing, rather I am assuming, that in a partition suit there can be accounts for the purpose of equalizing the shares, that in that sense there can be an inquiry as to 'equities', but equities limited to those arising from the property itself and the contemplated division. I am also aware that under certain circumstances and certain conditions accounts might be sought against the karta. No such question arose here.

9. Now, in this particular dispute the parties being identical, it might well be that the two suits I have mentioned might have been put together. It might have been convenient to do so, and without having gone into, the matter I see no legal objection to the two suits being included in one plaint. It would not have been one action, however, but two actions in one. It would have been first of all an action for division of the immovable properties, if necessary with equalization for the purpose of division plus an inquiry as to what were the properties to be divided. (That and no more, I think, is the meaning of the inquiry directed.) Secondly it would have been a suit for winding up, accounts, sale and division of the net profits. I am further inclined to agree that if these two suits were distinct and in the partnership suit B gets a decree for a lakh against A, it might from a practical point of view be perfectly reasonable as between A and B to amend the pleadings in the partition suit and, to use the words already quoted ' bring in that decree'. I also take the view that if amendment could be ordered, if it could have been done with amendment, the fact that no amendment had actually been made would not, in my opinion, vitiate the order. It would however be done because the parties were the same, not because it is one suit. That brings me to the point of law, the question of lis pendens. The essentials of Section 52 read as follows:

During the pendency of any suit in which any right to any immovable property is specifically in question, the property cannot be dealt with by any party to the suit so as to affect rights of any other party thereto under any order which may be made therein.

10. Mr. Chatterjee for the defendant supporting the case of lis pendens contends that 'any order' means any order the Court may pass and if ha is right, this order, a perfectly reasonable one as I have said as between A and B, will also prevail over any disposition of the property of A in favour of the third party, the plaintiff here. He first of all relies upon the terms of the section which says ' any order which may be made'. He then relies upon the cases which in this Court have criticised the view of Sir Richard Couch expressed in Kailash Chandra Ghose v. Fulchand Jakarri (1872) 8 Ben L R 474, i.e., Bharat Ramanuj Das v. Srinath Chandra Sahoo AIR 1922 Cal 358 and in particular Sudhirendra Deb Manna v. Ranendra Dab : AIR1930Cal539 . I have not been able to go into the authorities as fully as I liked, but that will not affect the view which I shall shortly express.

11. The view of Sir Richard Couch has in my opinion suffered somewhat unduly from the particular phraseology employed. That case, so far as I remember, was between two transferees. The first transferee was the mortgagee of one of the parties to a partition suit. The second transferee was a purchaser under order for sale in the partition suit for the purpose of discharging costs of the partition suit. The second transferee relied upon the order of the Court as an order passed in the suit, and on this ground contended that his transfer took precedence on the transfer pending the suit by one of the parties. In the lower Court the main reason for the rejection of the lis pendens contention was that the second transferee relying upon the transfer for costs was not a party to the suit or to be considered as such and therefore not within the section. It was held therefore that the principle which now is enacted in Section 52 but which is exactly the same, did not apply because no right of any party to the suit was interfered with but the right of some outside party. That is a matter which I need not discuss. Everybody now knows that the costs of a partition suit have first to be provided for, and that no party or transferee can get anything except what is left, if anything. But that was the reason for the decision in the lower Court and that was the view upon which substantially the Chief Justice based any decision. It was incidentally that he used the phrase so often criticised, at p. 489. He answers the rhetorical question:

Is he bound by any order which the Court may be induced by the parties to make in the course of the suit?

12. He says there must be limits. As I understand it, he moans that a transferee pendente lite will be bound by any order which may be made in the suit normally developing, not by what might be called a 'sport' a-'litis'. We speak somewhat charitably of a 'suit' coming to 'fruition'. A particular type of suit may perhaps be regarded as a particular species of tree. A man from an orange tree is to 'expect' oranges; oranges good, bad and indifferent, small and large, but not apples. There are defects in all such hyperbole but I descend to it, only to explain my understanding of Sir Richard Couch's doctrine of expectation. In 49 Cal 220,2 the point taken was that a consent decree is not such an order or decree as comes within Section 52. Mukherjee J. disposed of that contention, and ruled that a consent decree does fall within the scope of rule enunciated in Section 52. He went on to criticise the passage in the judgment of Sir Richard Couch, but ultimately held that in that particular case the decree which was made was one which could have been 'expected', and which did logically fit the frame of the suit. Owing to the finding I have just mentioned, it cannot be argued that this is an authority to the effect that a decree even if it relates to a matter beyond the scope of the suit will operate as lis pendens so far as those extraneous matters are concerned. Indeed, I think it is an authority to the effect that in so far as the decree extends beyond the subject matter of the suit, in so far as it deals with matters not the subject matter of the suit, it could not operate as lis pendens because only to the extent of the matters embraced in the suit will it be a decree.

13. As regards 51 C L J 3853 I must concede that it does look as if in this consent decree matters were dealt with outside the scope of the suit. The main point in the case however was not the question of lis pendens. It was a question whether a certain settlement should be set aside as not being for the benefit of the minor. The question of lis pendens was incidental, and incidentally the Chief Justice dealt with it. The mortgagees were not before the Court. In the course of argument counsel contended on the basis of Sir Richard Couch's judgment that lis pendens would only operate in the case of a decree of such a character that the making of it could or should have been anticipated by the transferee. In dealing with this argument at page 385, Sir George Rankin emphasizes that the doctrine of lis pendens is really not based on notice, and he uses this phrase 'the basis of the doctrine is that the parties to a suit cannot be allowed to shorten the arms of the Court in dealing with the suit' by transfers to a third party. In other words the doctrine is one of convenience. Then certain authorities are cited for this proposition which, in fact, are authorities on the other point, the question of setting aside a decree where minors are concerned. The Chief Justice does however refer in another place to Faiyaz Husain Khan v. Munshi Prag Narain (1907) 29 All 339, which decides nothing except that lis pendens will apply to a transaction which occurs after the institution of the suit but before summons is served. The remote origin or the theoretical justification of the rule seems to me to matter not very much. The relevant question to my mind, adopting the language of Sir G. Rankin, is what is the length of the Court's arms. So far as the English oases are concerned bee Price v. Price (1887) 35 Ch D 297 and Dart on Vendors and Purchasers], it appears to me that the doctrine does not extend to the case of any order whatsoever. On the contrary it does appear to be applicable only to orders appropriate (to use a neutral word) to the suit having regard to the nature of the property involved and the nature of the proceedings. In other words, the arm of the Court is not unlimited, not capable of unlimited extension.

14. In my view, for what it is worth, the section, although in general terms, does limit its own operation. It must be a suit in which the rights to immovable property are in issue; the order must be an order relating to rights to such property, and the transaction which will give place or be made subject to the order of the Court must be one which derogates from the other parties' rights to the property in suit. What I mean is this. A cannot transfer his interest in X so as to affect any right in X which the Court might have established in favour of B, Therefore that any order which the Court might have made as to the right of B in respect of X will override or prevail over any alienation by A. I think however that the order of the Court must relate to rights which the parties claim, or which they might have claimed in the property X. The Court cannot create proprietary right in B on grounds distinct from the' property itself.

15. What the Court has done here in my opinion is not to make an order as to B's rights in X, that is Radha Bai's rights in the moveable property, but having granted to B in another suit, in the money suit, certain rights a decree for Rs. 1,20,000 has ordered satisfaction of that decree out of the property of A. A's transfer has only impeded the action of the Court in ordering satisfaction of B's personal decree out of A's property. The mortgage by A has not affected the rights of B in X. It has affected the rights of B in Y. What A has really done is to defeat the execution. Now I think the arm of the Court, while it could not be shortened in making any order or decree with regard to the rights of A and B in the property itself, was not capable (as regards outsiders) of shooting out and taking the monetary right of B and adjusting that monetary right against A's property. In other words Section 52 only applies to rights of the other 'party' involved in and arising out of the property which is the subject matter of the suit. That again is badly expressed. The result is that in my opinion the doctrine of lis pendens so far as the order setting off the decree of Rs. 1,20,000 is concerned does not apply to the mortgage of the plaintiff. That substantially disposes of the case.

16. I should however mention as the matter may go further, that two sets of issues were handed up to me. Certain issues on white paper were handed over to me by Mr. H. D. Bose and the issues on blue paper were handed to me by the other side after the issues had been considered. Mr. Bose did give up Issue 9, the question of notice on the plaintiff firm. With regard to Issue 4, as finally settled, it is perhaps right that I should express my view. The decree obtained by Radha Bai was obviously a perfectly genuine decree. With regard to the order of 12th April 1932, certain evidence had been given and my conclusion is this that Radhakissen all that time oared not at all. I daresay he then preferred that Radha Bai should get the property (he being the reversioner). I do not find however that the order was obtained collusively. The decision on the point of law however really covers the whole case. It remains for Mr. Roy to formulate the declaration which he desired me to pass.

17. I have made an order for costs in favour of the plaintiff against the defendant. Mr. Chatterjee has suggested an order that the plaintiff should add his costs to his claim and the defendant should only be liable if there is any balance. Radhakissen the mortgagor is a party but he does not appear. Nevertheless, and notwithstanding possible objections in the peculiar circumstances of this case, I am prepared to make that order. The order for costs will include reserved costs, if any. The defendant will be liable for any costs not recovered by the sale of the premises mortgaged to the plaintiff. The plaintiff firm is entitled to a decree in terms of Clauses (a), (b), (e) and (g) of the prayer of the plaint, without affecting the charge for costs declared in the final decree dated 6th June 1933 made in Suit No. 31 of 1924. The costs of the plaintiff firm to be added to their claim under the mortgage. Such costs to be realized in the first instance out of the sale proceeds of lot 'A' aforesaid and in the event of deficiency, such deficiency to be paid by the defendant Radha Bai.

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