The Judgment of the Court was as follows:—
Mukherjea, J.:— This appeal is on behalf of the Defendant and it arises out of a suit commenced by the Plaintiff for declaration of his title to the land in suit under the provision of Or. 21, r. 63 of the Code of Civil Procedure. The facts are not disputed and lie within a short compass.
One Debendra Nath Panja to whom the land in suit admittedly belonged died leaving a widow named Subasini and a daughter by his predeceased wife named Renuka. On 19th May, 1930, Subasini mortgaged the property in suit to the Plaintiff to secure an advance of Rs. 4,000 only. On the very next day that is to say, on the 20th May, 1930, Renuka brought a suit for maintenance against her step-mother and in that suit she prayed for declaration of a charge in respect of the maintenance claim upon the properties left by her father. This suit was decreed in April, 1933 and a charge was declared in respect of the maintenance allowance upon the property in suit. After the institution of the maintenance suit and pending its decision, the Plaintiff brought a suit upon his mortgage and obtained a decree on 9th September, 1931. In execution of the mortgage decree, the property in suit was sold and was purchased by the Plaintiff himself on 9th March, 1932. On 7th June following, the purchaser took possession. Renuka after obtaining the decree in the maintenance suit attached this property in execution of the same and thereupon the Plaintiff preferred a claim under Or. 21, r. 58 of the Code of Civil Procedure which was dismissed on the ground of its being filed too late. The Plaintiff subsequently instituted the present suit to set aside the adverse order which was made against him and for establishment of his title to the property on the strength of his purchase at the mortgage sale. Both the Courts below have decreed the Plaintiff's suit, holding that the decree in the maintenance case could not in any way affect the title of the Plaintiff. The propriety of this view has been challenged by the learned Advocate who appears for the Appellant and he has raised two points in support of the appeal.
The first contention is that the Plaintiff being a transferee of the property in suit with notice of the Defendant's right to receive maintenance out of it, the Defendant's right of maintenance as declared by the decree, can be enforced against the Plaintiff under sec. 39 of the Transfer of Property Act. On this point, however, the findings of both the Courts below are against the Appellant and they have concurred in holding that the Plaintiff had no notice. It seems to us that the Court below was perfectly right in holding that as Renuka was a married daughter she would ordinarily have no right of maintenance out of the property left by her father and it is not a circumstance which ordinarily would be enquired into by a prudent transferee. The learned Advocate for the Appellant laid stress on the findings arrived at in the suit brought by the Defendant against the Plaintiff for a declaration that the mortgage executed by her step-mother was not supported by any legal necessity and hence could not inure beyond her life-time. It was said in that suit that the transaction was an act of collusion between the Plaintiff and the Defendant though the latter had actually received the consideration money. This really means that the lady made an attempt in collusion with the Plaintiff to deprive the future rights of her daughter by executing the mortgage which, though purported to be a mortgage, had as its consideration nearly the full value of the property. No inference can be drawn from this passage of the judgment that the Plaintiff was aware of the Defendant's right to receive the maintenance out of the property which was mortgaged by her step-mother. This contention, in our opinion, therefore must fail.
The second point raised is, that the Plaintiff having purchased the property at a mortgage sale during the pendency of the maintenance suit started by the Plaintiff was hit by the doctrine of lis pendens and he must hold the property subject to the rights of the Defendant as declared by the decree in that suit. It is true that though sec. 52 does not in terms apply to a sale in invitum, its principle have been extended to involuntary transfers. In this case however, the mortgage itself was prior to the institution of the suit and the purchaser at a mortgage sale must be construed to have purchased both the rights of the mortgagee and the mortgagor as they stood at the date of the mortgage. The purchaser could not, therefore, be said to be the representative of the judgment-debtor in the proper sense of the term which alone would make him liable by the decree passed in the pending suit. The Defendant did not acquire any interest in the mortgaged property at the date when the mortgage suit was instituted and consequently it was not incumbent upon the Plaintiff to make her a party in the suit. We think that the decision of the Courts below is right and the appeal must fail.
The appeal is accordingly dismissed with costs.
Ghose, J.:— I agree.
C.C
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