Kallawa v. Parappa Sankappa Sarvi

Divatia, J.:—

This is an appeal by the defendant in a suit for a declaration that the suit properties were not liable for satisfaction of the decree passed in the defendant's favour in suit No. 77 of 1928 and for a permanent injunction restraining the defendant from proceeding against the suit properties in execution of the decree. The facts which led to the litigation are shortly these. There were three brothers Bashetteppa, Chinnappa and Shidlingappa. The last one is dead and his widow is the defendant. The three brothers formed a joint Hindu family. On March 3, 1928, the defendant filed an application in the nature of a suit to take a decree in terms of a private award between herself and the two brothers of her husband. In the award it was directed that the plaintiff therein was entitled to receive Rs. 66 per year as her maintenance from the two brothers and the amount of maintenance was fixed upon three specified family lands on which a charge, was created for the same. A decree was passed in terms of the award on March 31, 1928, in that proceeding which was registered as suit No. 77 of 1928.

The plaintiff's father had purchased the three properties which were charged under the award decree from the two brothers on December 3, 1935, for Rs. 5,000. Out of that amount Rs. 4,000 were paid to a person who held a prior mortgage on these lands for Rs. 3,500. The present defendant had filed a darkhast, No. 653 of 1939, presumably the first darkhast, to execute, her maintenance decree against the three charged lands. The plaintiff interceded in the execution proceedings and claimed that he had become the owner of the lands. That objections seems to have been overruled, with the result that the plaintiff filed the present suit for the declaration and injunction mentioned above. His case was that he was a bona fide purchaser for value without notice of the alleged charge of the defendant on the suit properties. The defendant's contention was that the plaintiff's sale-deed was hollow and that the plaintiff's father was not a bona fide purchaser because he was well-acquainted with the family of her husband's brothers. The learned trial Judge decided the suit against the plaintiff on the ground that it was not proved that his father was a bona fide purchaser for Value without notice and that it was not proved that the purchase was free from the maintenance charge in favour of the defendant. The suit was accordingly dismissed. On appeal by the plaintiff, the Assistant Judge held that the plaintiff's father was a bona fide purchaser for value without notice of the charge and that therefore the suit lands were not liable to be sold in execution of the defendant's decree. He based his decision on the ground that the defendant was only a charge-holder of the suit lands and that charge, under s. 100 of the Transfer of Property Act, could not be availed of against the person who puchased the lands without any notice of it. The learned Judge relied upon a decision of the Oudh Court in Mt. Indrani v. Maharaj Narain in which it was held that there was no difference in principle between a charge created by a decree and one created by a contract, and that the charge in the present case was governed by s. 100 of the Transfer of Property Act. The second appeal is filed by the defendant against the decree allowing the plaintiff's appeal.

Mr. Jathar for the appellant has based his argument on a point of law which was not urged in the two lower Courts, but we have heard him as it is a point of law which does not depend upon taking any new evidence. The point urged by him is that the sale in favour of the plaintiff's father was affected by lis pendens inasmuch as at the date of the sale the maintenance decree obtained by the defendant was enforceable against the judgment-debtors from whom the plaintiff's father had purchased the properties, and that therefore, under s. 52 of the Transfer of Property Act the plaintiff cannot dispute the defendant's right created under her decree. It is further contended that if the plaintiff's right is barred by lis pendens then it does not matter whether the purchase by his father was with or without notice of the defendant's charge. It is however urged that the finding of the lower Court that the plaintiff's father had no notice of the charge is erroneous. With regard to the latter point we are of opinion that there is no error of law in the finding made by the lower Appellate Court. It is held that the plaintiff's father inquired from the brothers as to why the property was being sold and he found that a mortgage in favour of the Dharwar Bank was to be satisfied. It is true that he knew the two brothers for some years prior to the sale, but it does not appear that the defendant was living with the two brothers and that there is nothing to show that the plaintiff's father was put upon his inquiry as to whether any charge was created on the properties for the defendant's maintenance. That being so, we think that the lower Appellate Court was right in holding that the plaintiff's father had no notice of the defendant's charge.

The only point that remains is whether the plaintiff's sale is affected by lis pendens. There is no doubt that an alienation during the pendency of proceedings for maintenance in which certain properties are sought to be charged can come within s. 52 of the Transfer of Property Act. The recent decisions in Gangabai v. Pagubai affirmed in Gangabai v. Pagubai and Ramchandra Gururao v. Kamalabai Sarathi clearly establish that proposition. In the present case the sale to the plaintiff's father was not during the pendency of the suit itself, but it was made after the award decree was passed and the question therefore is whether the doctrine of lis pendens would apply to an alienation or transfer made alter the decree is passed in a maintenance suit, and secondly, whether it would apply if the decree is not an ordinary decree, but a decree passed on an award in a private arbitration. For the purpose of the first point Mr. Jathar relies upon the explanation to s. 52 of the Transfer of Property Act. Under that section the lis once started from the date of the presentation of the plaint or the institution of the proceedings would continue till the complete satisfaction or discharge of the decree or the time when such satisfaction or discharge has become unobtainable by reason of the expiration of the period of limitation. In the present case the decree is one for the payment of Rs. 66 every year and the charged properties are available in execution of that decree so long as it is enforceable. We think that such a maintenance decree does come under the explanation to s. 52, with the result that the lis would continue till the decree is either completely executed or its execution becomes unobtainable. There is a decision of the Madras High Court in Ramasami Pillai v. Trichinopoly Co-operative Credit Bank, Ltd. which takes the same view. It is held there that the doctrine of lis pendens applies to maintenance actions. In a maintenance suit the decree does not terminate the litigation, but the lis continues even after the decree and the mortgage of the property the subject-matter of the suit, executed by the judgment-debtor after the decree in the suit is affected by lis pendens. The Nagpur High Court has also held to the same effect: Ahsan Hussain Abdul Ali v. Maina. It is true the decision in that case is based not so much upon the principle of lis pendens as upon estoppel by record, but in our opinion there is no reason why it cannot be governed by the former principle. It is however contended by Mr. Belavadi on behalf of the respondent that the case does not come under s. 52 at all, firstly because the decree is really a maintenance decree in which a charge on certain properties is declared, and secondly there is no specific provision in the decree that the properties are to be sold in its execution if the money was not paid. It is true that the decree does not state specifically that on the failure of the judgment-debtors to pay the amount the decree was to be executed by sale of the charged properties. But it does create a charge on the properties and as held by our Court, in Ambalal Bapubhai Gujarati…Plaintiff v. Narayan Tatyaba Bhosale…Defendant ., where the decree created a charge on certain immoveable properties of the defendant in a money decree the plaintiff had the right to bring the charged properties to sale in execution proceedings and that it was not necessary to file a separate suit for enforcing the charge. There is no doubt, therefore, that even if the decree merely declared a charge on the property it was executable as against the charged properties, and that, therefore, the properties were affected by the decree. It has also been so held by the Nagpur High Court in Ghasiram v. Kundanbai. But the more serious objection urged by Mr. Belavadi against Mr. Jathar's contention is that the present decree is an award decree outside the Court, and that therefore, the doctrine of lis pendens cannot apply to it especially when at the date when the properties were sold to the plaintiff's father in 1935 there was no application for execution of the award decree pending in any Court. The argument is that there was no regular suit before the Court, but only an application by the parties to take a decree in terms of the award. It is urged that there is nothing to show on the record that there was a dispute between the parties about any charge to be made for the defendant's maintenance, and that therefore, there was no commencement of the lis at the time when the application to file the award was made. Secondly, even if the charge was embodied in the award decree no application to execute the decree was filed till 1939 and that was after the sale to the plaintiff's father. The result therefore was that in 1935 when the property was sold there was no pendency of any proceeding in which any right to immoveable property was directly and specifically in question. Now, it is no doubt true that there is nothing to show that there was any dispute about the properties to be charged between the defendant and the persons against whom she claimed maintenance. All that we know is that an award was obtained in which the suit properties were charged and a decree was taken in terms of the award. There is however no difference between a plaint in a maintenance suit in which there is a prayer to charge any family property for the amount of maintenance to be decreed and a case where an application is made to file a private award where a charge for maintenance on certain lands was created. In the former case it is clear and it is also conceded, that the lis will begin to run from the date when the plaint was filed, but it is contended that in the latter case the lis cannot begin to run, firstly because there was no immoveable property directly and specifically in question, and secondly there was no pendency of any suit or proceeding at that time. There are no doubt two decisions which support Mr. Belawadi's contention Abdul Ghaffar v. Ishtiaq Ali and Badridas Lalchand v. Raja Pratapgir. It is held in the former case that where the property is never the subject of a contest nor is the charge on it, and the only dispute is about a sum of money and the parties eventually agree upon a mode of satisfaction, which is never in contest and never a dispute the doctrine of lis pendens does not apply. There also it was a case of a private award and it was held that the making of the application to file the award did not start the lis because the only questions which the Court had to decide on that, application were whether the matter had been referred to arbitration, whether the award had been made thereon and whether there was any ground for remitting it under para 14 or set it aside under para 15. The Nagpur case also laid down the same principle although it was not a case of an award. On the other hand we have a decision of our Court in Pranjivan Govardhandas v. Baju. In that case there was also a private award and a decree was passed according to that award. It was directed in the award that the plaintiff had a right to sell certain mortgaged properties in satisfaction of the debt. The award was presented on January 23, 1874, and was filed on February 23, 1874. Meanwhile on February 14, 1874, the property was attached in execution of a decree obtained by a creditor of the mortgagors and on April 15, 1874, it was sold and purchased by the defendant. It was held that the presentation in Court of the award obtained by the plaintiff was equivalent to the presentation of a plaint for the specific performance of the contract of mortgage and the proceedings consequent thereon constituted lis pendens during which a mere money decree-holder could not, by any proceedings which he might take, defeat the object of the plaintiff's application to the Court to file his award. This is a case decided before the Transfer of Property Act was enacted, but s. 52 merely declared what was already the law before the passing of the Transfer of Property Act as observed in Mulla's Transfer of Property Act at p. 219. We are clearly of the opinion that the principle of this case applies to the facts of the present case. Just as the application to file the award was regarded as equivalent to the presentation of the plaint for specific performance of the mortgage, so here the presentation of the application to file the award must be regarded as a plaint for creating a charge over the suit properties and it would stand on the same footing as a plaint in an ordinary maintenance suit where a charge was sought to be created. It is not, therefore, necessary to consider as to whether in any case the charge does not begin from the date of the award decree. On that point there is an authority of the Madras High Court in Jagannath v. Ramachandra, that lis pendens operates from the decree in any case. We think that on the principle laid down in Pranjivan Govardhandas v. Baju it must be held that the lis commenced with the defendant's application to take a decree in terms of the award. Once the lis begins to operate it will continue till the final satisfaction of the maintenance decree or till its satisfaction becomes unobtainable by reason of the bar of limitation. In 1935 when the alienation in suit was effected the maintenance decree was alive and therefore the alienation comes within the bar of lis pendens. As a result the defendant-appellant is entitled to succeed.

The appeal is allowed, the decree of the lower appellate Court is set aside, the decree of the trial Court is restored and the plaintiff's suit dismissed. The appellant will be entitled to her costs in this Court and in the lower appellate Court. Each party will bear its own costs in the trial Court.

Decree reversed.

J.G.R