N. Chandrasekhara Aiyar, J.
1. The plaintiff is the appellant in this second appeal. He purchased the house in question in execution of a small cause decree for money obtained against defendant 2, Dhanalakshmi Ammal, as representing the estate of her deceased husband, Govindaswami Naicker. When he wanted to take possession of the property, defendant l obstructed him, claiming title under a sale-deed executed in her favour by defendant 2 on 13th November 1929. The plaintiff applied for the removal of the obstruction but his application was dismissed and he was referred to a regular suit. Thereupon he filed the suit out of which this second appeal has arisen, claiming that he had a right to the property as against defendant 2. He impeached the sale-deed under which defendant l claimed, as a nominal transaction devoid of consideration but both the Courts have found that it was a genuine sale-deed, supported by necessity.
2. The Courts below have non-suited the plaintiff on the ground that he is only an auction-purchaser of property brought to sale under a money decree against the estate and cannot seek to recover the property from one who claims title under a prior purchase from the widow,.representing the estate. The District Munsif also held that the suit was barred by limitation because the suit was filed more than twelve years from the date of the sale-deed, Ex. D-2, under which defendant l claims title. The point as to limitation was not dealt by the appellate Court. The original owner Govindaswami died on 3lst October 1925, leaving two widows behind him, Thulasi and Dhanalakshmi defendant 2). Dhanalakshmi set up a deed of settlement in her favour by her husband. Its genuineness was impugned by the other widow, Thulasi Ammal, registration of the document was refused by the Sub-Registrar and thereupon Dhanalakshmi filed a suit for registration of the document. She obtained a decree before the sub-Court; on appeal to the High Court, this decree was reversed and the document was found to be a forgery. The appeal to the High Court was A. S. No. 18 of 1928 and the judgment in the appeal was on 4th April 1933. It was during the pendency of this appeal that the sale-deed, Ex. D-2, was executed in favour of defendant 1 by Dhanalakshmi Ammal, for consideration and for necessary purposes binding on the estate, which is the finding of the Courts below.
3. Thulasi Ammal filed a suit for partition in 1934 but before it became ripe for hearing she died in 1936, with the result that the whole estate became vested in Dhanalakshmi Ammal as the surviving widow of Govindaswami. The first contention raised on behalf of the appellant is that the alienation under Ex. D-2 of the suit property is invalid because it was an alienation by one only of two co-widows and is not binding on the estate even if it was for necessity. This is perfectly true. But the person or persons to question such an alienation would be the co-widow, Thulasi, if she was alive, or the reversioner or reversioners of the estate after Thulasi's death. The plaintiff is a stranger and his position is in no way bettered by the fact that he has purchased the property in execution of a money decree. A creditor could proceed only against the estate of the deceased in the hands of the widow in execution of such a decree as we have in this case and, if before execution a part of the estate has been alienated by the widow to a stranger for necessity, it is not open to him to object to the alienation. The alienation is not void but is only voidable and it can be avoided only at the instance of the co-widow or the reversioners and not by third parties: A.I.R. 1938 Bom. 388 (138) 25: A.I.R 1938 Bom. 388: 177 I.C. 290, Govind Gurnath v. Deekappa Mallappa 16 Lah. 714 (135) 22 : A.I.R. 1935 Lah 867 : 16 Lah. 714 : 159 I.C. 474, Imperial Bank of India, Jullender v. Mt. Maya Devi and A.I.R. 1940 Pat. 270 : 185 I.C. 788, Ramkumar v. Mohanlal. This ground is therefore not available to the appellant Nextly, it was urged that the alienation is affected by the doctrine of lis pendens because it was made during the pendency, of A. S. No. 18 of 1928, on the file of the High Court, in which the properties belonging to the estate were involved. This point too is of no substance because of two reasons. In the first place, the question in A. S. No. 18 of 1928 related only to the genuineness of the deed of settlement. There was no right to immovable property directly and specifically in question in those proceedings. For the doctrine to apply, the right to specific immovable property must be directly in issue. Neither the suit, O. S. NO. A of 1926, nor the appeal A. S. NO. 28 of 1928, raised any such question about the property now in dispute. The only point which then arose for decision was whether the deed of settlement set up by Dhanafakshmi Ammal was true or whether it was false Secondly, what is prohibited by the doctrine is a transfer of property by any party to the suit so as to affect the rights of any other party thereto under any decree or order that may be made. In other words, the transfer would not be valid against the other party to the suit, namely, Thulasi Ammal. But it is not Thulasi Ammal that now questions this alienation, nor any representative of hers. The plaintiff is a purchaser of the property in execution of a money decree against the estate of Govindaswami.
4. The plea that the suit is barred by limitation, which was upheld by the District Munsif was relied on for the respondents. Prima facie the suit is barred as it was brought in 1942 more than 12 years after the date of the alienation in defendant 1's favour. It is admitted that defendant 1 has remained in possession throughout. If the alienation is invalid, as is the contention for the appellant, defendant 1's position has been that of a trespasser and she could prescribe for an absolute title on the expiry of twelve years from the date of the sale-deed. The difficulty was sought to be got over for the appellant by the argument that, as the application for delivery of possession was made on 3lst October 1941 within twelve years from the date of the alienation, the suit is within time, as we can hold that it is merely a continuation of the application for delivery. "While a suit filed under o. 21, R. 63, Civil P.C., will arrest the running of time in favour of the person in possession as held in 1943 1 M.L.J. 212 (143) 30 : A.I.R. 1943 Mad. 425 : I.L.R. (1943) Mad. 696 : 211 I.C. 27 : 1943-1 M.L.J. 212, Fatima Bibi v. Mohamed Usman Sahib it is difficult to see how a mere application for delivery would have the same effect. It is in no way better than an attachment of properties at the in, stance of a creditor of the judgment-debtor and it was held in I.L.E. (1939) Mad. 803 (139) 26 : A.I.R. 1939 Mad. 456 : I.L.R. (1939) Mad. 803: 182 I.C. 999 (S.B.), Dharapuram Janopakara Nidhi Ltd. v. Lakshminarayana that such an attachment will not interrupt the adverse possession, and in that case we had the further circumstance that a claim petition preferred by the respondent, who claimed to be in adverse possession, had been dismissed as belated. There is no authority in support of the view that a mere application for delivery of possession against a person in possession which was subsequently dismissed, will stop the running of time. The plaintiff's suit was rightly held to have been barred by limitation. The result is that the second appeal will stand dismissed with costs of respondent 1. No leave.
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