1. The facts out of which this second appeal arises are undisputed. The property in dispute belonged to one Narayan Dada Kore who died about the year 1920 or 1921, leaving behind him two sons Tatya and Malkarjun, and his widow Pagubai, the stepmother of Tatya and Malkar jun. He had left some debts, to satisfy which Tatya and Malkarjun mortgaged the property in suit to the plaintiff for Rs. 1800 on 1st June 1922 (Ex. 84). Thereafter their stepmother Pagubai filed a suit for maintenance on 11th April 1923 in which the plaintiff also was impleaded as defendant 3. She claimed that her maintenance should be a charge on the property in suit. She asked for permission to file the suit in forma pauperis. The permission was granted on 26th January 1924 and the suit was duly registered. Thereafter Tatya having died, Malkarjun sold the property to the plaintiff for Rs. 2000 on 10th June 1924 (Ex. 85). That consideration was made up of Rs. 1800 due under the mortgage deed of 1922 and Rs. 200 paid in cash in the presence of the Sub-Registrar. In her maintenance suit Pagubai obtained a decree on 30th January 1925 and the amount of her maintenance was made a charge on the property in suit. Before the decree was passed the plaintiff's name was struck off. In execution of the decree in darkhast No. 59 of 1935 Pagabai got the property in suit sold by auction and it was purchased by defendant 2 on 10th May 1926. Defendant 2 sold it to defendant 3 on 12th May 1927 and he took possession of the property. The plaintiff instituted this suit for a declaration that her sale deed from Malkarjun was for valuable consideration and taken in good faith, and that the property mentioned in the sale deed was not liable to be sold in execution of Pagubai's maintenance decree. She also asked for possession of the property from defendants 2 and 3. The trial Court awarded the plaintiff's claim; but the lower Appellate Court held that the plaintiff's sale deed was affected by the doctrine of is pendens, reversed the decree of the trial Court and dismissed the suit with costs throughout.
2. On these facts, it is now urged on behalf of the plaintiff-appellant that as the consideration of her sale deed was utilized for the satisfaction of the debts of Narayan Dad a fore, the sale deed took priority over the auction sale in execution of Pagubai's maintenance decree. There is no doubt that when the plaintiff purchased the property from Malkarjun in 1924 under Ex. 85, Pagubai's suit for maintenance was pending.
3. Ordinarily a suit by a Hindu wife for maintenance against her husband is a personal suit, and any purchaser of the family property during the pendency ‘of the suit is not affected by the rule of is pendens. But the doctrine of lis pendens does apply to a suit for maintenance by a Hindu widow in which she claims to have her maintenance made a charge on specific immovable property and a decree is passed creating a charge on such property: 54 Mad 132.1 It is however urged that as the debts contracted by Narayan Dada Kore took priority over the right of maintenance after his death, the plaintiff's purchase ought to take precedence over the sale in execution of Pagubai's maintenance decree. As observed in 43 Mad 8002 it may be stated as a general proposition that in the administration of a Hindu's estate, binding debts would take precedence over mere claims for maintenance, or residence, on the part of the female members of the family; but there is no clear authority for the proposition that a charge bona fide created for maintenance can be defeated by a creditor who has lent money for family purposes. The real question in this case is whether the doctrine of lis pendens affects the plaintiff's purchase of the property on which a charge was created by the decree in that suit. The principle of lis pendens is based on the maxim ut lite pendente nihil innovatur, which means that during a litigation nothing new should be introduced. So far as the mortgage of 1922 is concerned, as the property was mortgaged for the satisfaction of ancestral debts binding on the family and the mortgage was effected before Pagubai's suit for maintenance was filed, any subsequent charge created on that pro party for Pagubai's maintenance cannot affect the mortgage. But by selling that property Malkarjun curtailed the right of the Court to create the charge which was prayed for in that suit. As observed by Sir George Rankin C.J in AIR 1930 Cal 5393 at page 543:
The basis of the doctrine [of lis pendens] is that parties to a suit cannot be allowed to shorten the aims of the Court in dealing with the suit [by transfers to a third party].
4. That is what Malkarjun did in this case by absolutely transferring the property to the plaintiff when Pagubai's suit for maintenance asking for a charge on the property was pending. The plaintiff had already a mortgage on that property which may be said to have priority over Pagubai's claim for maintenance. If a further alienation had to be created during the pendency of her suit, then the proper remedy for Malkarjun and the plaintiff was to approach the Court for permission to do so. Section 52 of the Transfer of Property Act, provides that during the pendency of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Assuming that the debts of Narayan Dada Kora which had to be paid had a priority over Pagubai's claim for maintenance, still when Pagubai filed a suit asking for a charge on the property, the property became the subject matter of that suit and even a party who has to satisfy a debt having a priority over the claim for maintenance had to alienate the property under the authority of the Court and on such terms as it might impose. If the party fails to obtain the authority of the Court for the purpose, then the alienation will be subject to the final decree in that suit. The decree in Pagubai's suit ultimately charged her maintenance on the property in suit, and for the recovery of that, the property was sold by auction. The plaintiff is therefore bound by that auction sale although his mortgage was prior to the institution of the maintenance suit and may have precedence over the claim in that suit. The present suit is based entirely on the strength of the sale deed. How the rights of the plaintiff under the mortgage deed can be enforced need not be discussed here; but so far as the alienation during the pendency of the suit is concerned, it must be held to be subject to the result of the maintenance suit and the reliefs prayed for by the plain, tiff cannot therefore be granted. The decree of the lower Appellate Oourt is confirmed, and I dismiss the appeal with costs.
D.S/R.K
5. Appeal dismissed.
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