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Loke Nath Sahu Vs. Achutananda Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.85
AppellantLoke Nath Sahu
RespondentAchutananda Dass and anr.
Cases ReferredKokilasari Dasi v. Mohunt Rudranand Goswami
Excerpt:
lis pendens - transfer of property act (iv of 1882), section 52--misdescription of property in pleadings--applicability of doctrine of lis pendens--mortgage suit--continuation of lis after decree nisi.--plaintiff to succeed on case made in plaint--suit for possession when may he concerted into one for redemption--pleadings. - .....now claims is to redeem the defendant as he was not made a party to the proceedings in the mortgage suit of the latter. the defendant, however, resists the claim for redemption on the ground that as the mortgage of the plaintiff was taken doling the pendency of his mortgage suit, that is, after the institution of the mortgage suit of the defendant and before the decree in that suit was made absolute, the plaintiff is afflicted by the doctrine of lis pendens and his right of redemption must be taken to have been extinguished when the property was sold on the 15th november 1901. the court of first instance held that the doctrine of lis pendens was not applicable and made a decree for redemption in favour of the plaintiff. upon appeal the district judge has held that the principle.....
Judgment:

Mookerjee, J.

1. This is an appeal on be half of the plaintiff in an action for recovery of possession of immovable property. The plaintiff claims title from the husband of the second defendant who was the admitted owner of the disputed property, and bases his title on a mortgage bond executed in his favour on the 13th February 1895. He obtained a decree on this mortgage on the 6th January 1901, and purchased the property at the execution sale on the 15th July 1903. The first defendant founds his title on a mortgage executed in his favour on the 19th February 1889. He obtained a decree on the 13th August 1892, which was subsequently made absolute on the 13th July 1901. He purchased at the execution sale on the 15th November 1901 and was placed in possession by the Court on the 6th June 1902. In the Courts below each side impeached the validity and reality of the mortgage which was the root of the title of the other, but it has been concurrently found that the mortgages represented genuine transactions. The only relief therefore which the plaintiff now claims is to redeem the defendant as he was not made a party to the proceedings in the mortgage suit of the latter. The defendant, however, resists the claim for redemption on the ground that as the mortgage of the plaintiff was taken doling the pendency of his mortgage suit, that is, after the institution of the mortgage suit of the defendant and before the decree in that suit was made absolute, the plaintiff is afflicted by the doctrine of lis pendens and his right of redemption must be taken to have been extinguished when the property was sold on the 15th November 1901. The Court of first instance held that the doctrine of lis pendens was not applicable and made a decree for redemption in favour of the plaintiff. Upon appeal the District Judge has held that the principle of lis pendens is applicable and the plaintiff has no enforceable right of redemption.

2. The plaintiff has now appealed to this Court and the substantial question of law which has been argued before me is whether the doctrine of lis pendens is applicable when the property in suit has been misdescribed. To explain this contention, it is necessary to state that according to the plaintiff, the property in the mortgage suit of the defendant was erroneously described as Lakheraj Bahali land No. 57,505, whereas the correct number is No. 37.505. It has been urged on behalf of the appellant that it was impossible for him to redeem the defendant in the course of the proceedings on the mortgage suit of the latter, because he had purchased No. 37,505 and he did not know that that was the property involved in the mortgage suit of the defendant and that even if he had made an attempt to redeem the defendant he would have been successfully met by the objection that the property purchased by him and the property in suit were not identical. The learned vakil for the respondent has conceded that the number of the estate was erroneously given; but he has suggested that in spite of this error the property might have been identified. This, however, is a question which it is impossible for me to determine as it is in substance a question of fact and the materials on the record, so far as they have been placed before me, are apparently not conclusive upon the matter. I must, therefore, determine only the question, whether or not misdescription of the property involved in a litigation is sufficient to render the doctrine of lis pendens inapplicable. If this question is answered in the affirmative, the case must be remitted to the District Judge in order that he may determine whether the misdescription in the mortgage suit of the defendant was of a character which rendered the identification of the property impracticable.

3. The question of law raised is apparently one of first impression so far as the Courts of this country are concerned; but the solution of it, in my opinion, is not difficult, in view of the provisions of Section 52 of the Transfer of Property Act. Under that section a right to immovable property must be directly and specifically in question in a suit in order that the decree made therein may affect the purchaser pendente lite; in other words, in order that lis pendens may be created, it is essential that the property involved in the suit must be described by such definite and technically legal description that its identity can be made out by the description alone, or that there is such a general description of its character or status that upon enquiry the identity of the property involved in litigation can be ascertained. The principle which underlies this position was applied in the cases of Manika Gramani v. Ellappa Chetti 19 M. 271 and Kailash Chandra Ghose v. Ful Chand Jaharri 8 B.L.R. 474. In the first of these cases it was held that the doctrine of lis pendens had no application when a right to immovable property was not specially in question in a suit for maintenance during the pendency of which the alienation impeached was made. In the second case it was ruled that the doctrine of lis pendens had no application when the alienation took place during the pendency of a suit for accounts against a managing partner in which title to immovable property was not specifically in question. My attention, however, has not been invited to any cases in the Indian Courts in which the litigation related to immovable property and the property was so misdescribed that it was impossible to identify it. But cases of this description have arisen frequently in the American Courts and the principle which underlies these decisions appears to me to be based not on any artificial grounds peculiar to American jurisprudence, but upon general grounds of justice, equity and good conscience. In Bennet on lis pendens (p. 154) it is pointed out that in order to make the doctrine of lis pendens applicable the lis must be sufficiently described in the pleadings. As authority for this proposition reference is made to the decision of the Supreme Court of the United States in Miller v. Sherry 2 Wallace 237 where it was ruled that to have the effect of lis pendens a bill must be so definite in the description that any one reading it can learn thereby what property is intended to be made the subject of litigation. Where there is nothing in the proceedings, except the simple description of the property, which will tend to put the public upon enquiry or give a clue for further and more definite knowledge where such knowledge can be acquired, the description must be so definite that any one reading it can learn thereby what property is intended to be made the subject of the litigation. On the other hand, if enough appears in the proceedings to put a purchaser on guard although they do not in themselves describe the property with that particularity which amounts of itself to complete identification, lis pendens would be created. What descriptor, is sufficient in a particular case may be a matter for controversy, and the cases on the subject can be found collected in the. notes to Newman v. Cheapman 14 Am. Dec. 766 at page 777 and Stout v. Philip Manufacturing Coy. 56 Am. S. Rep. 843 at p. 867 The most instructive of these cases are Watson v. Wellcox 20 Am. Rep. 03 and Norris v. Tle 43 Am. St. Rept. 233. In the former of these cases, the property was fully and correctly described in the notice of action, but in the schedule the description was repeated with a slip by which the Northern and Southern boundaries were interchanged. The Court ruled that the property was described with sufficient accuracy and that the false description in the schedule might be treated as surplus age. This was obviously a case different from one in which there is no correct description at all of the premises in controversy. In the second case, it was ruled that the description of the property in the pleadings is sufficient if any one reading them must be able to learn thereby what property is intended to be made the subject of the litigation. We may take it therefore as a reasonable and well-settled rule, that in order to make the doctrine of lis pendens applicable the property must be described in the pleadings with sufficient accuracy.

4. The result, therefore, is that this appeal must be allowed, the judgment and decree of the District Judge set aside and the case remanded to him to determine whether in the mortgage suit of the defendant the property was so inaccurately described as to make the doctrine of lis pendens inapplicable to the mortgage taken by the plaintiff. For the satisfactory decision of this point, it would be necessary to call for the records of the mortgage suit of the defendant; the District Judge will do so and also take additional evidence if necessary to elucidate any question that may arise in connection therewith. If he finds that the property was not described with sufficient accuracy the plaintiff will be entitled to redeem as he was allowed to do by the Court of first instance. If on the other hand the District Judge finds that the property was described with sufficient accuracy, though the number of the estate was inaccurately given, the plaintiff must fail because it has not been and cannot be seriously contested that in the case of a mortgage suit the Us continues even after the decree nisi and the doctrine of lis pendens is applicable to proceedings to realise the mortgage after the decree for sale. Surji Ram Marwari v. Barham Deo Persad 2 C.L.J. 288; Parsotam Narain v. Chheda Lal 29 A. 76 and Faiyaz Husain Khan v. Munshi Prag Narain 5 C.L.J. 563 : 34 I.A. 102.

5. The District Judge in the Court below appears to have held that as the plaintiff impeached the mortgage of the defendant as fraudulent he cannot in this suit be allowed to redeem, and in support of this proposition he relied upon the judgment of this Court in Kokilasari Dasi v. Mohunt Rudranand Goswami 5 C.L.J. 527. That case, however, lays down that a plaintiff must ordinarily succeed on the case ho has made in the plaint; an action instituted for a purpose apparently inconsistent with redemption cannot properly be converted into an action to redeem. There are, however, exceptions to the rule when special circumstances are established. The case before me falls in my opinion outside the ordinary rule. Here each of the mortgagees sued to enforce his security behind the back of the other and in this suit impeached the title of his opponent. The property in the mortgage-deed of the defendant was misdescribed with the result that the plaintiff might not unnaturally feel suspicious that everything was not straight. He can, therefore, be hardly blamed for challenging the reality of the mortgage which is the root of the title of the defendant. The case will be remitted to the District Judge for early disposal as the litigation has already lasted for nearly four years.

6. Costs of this appeal will abide the result.


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