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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This appeal arises from an action for recovery of possession of immovable property in which the plaintiff claims title deriving from the husband of the second defendant. The plaintiff's title rests on a mortgage bond dated 13 February 1895; he obtained a decree on that mortgage on 6 January 1901 and purchased the property at an execution sale on 15 July 1903.

The first defendant's title rests on a mortgage dated 19 February 1889; he obtained a decree on 13 August 1892 which was made absolute on 13 July 1901. He purchased at an execution sale on 15 November 1901 and was placed in possession by the Court on 6 June 1902.

In the Courts below both sides attacked the validity and reality of the other's root mortgage, but the courts concurrently found that both mortgages represented genuine transactions. The plaintiff's only remaining relief is to redeem the defendant because the plaintiff was not a party to the defendant's mortgage suit. The defendant contends that the plaintiff's mortgage was created during the pendency of the defendant's mortgage suit and therefore the doctrine of lis pendens extinguished the plaintiff's right of redemption when the property was sold on 15 November 1901.

The Court of first instance held the doctrine of lis pendens inapplicable and decreed in favour of the plaintiff. On appeal the District Judge held the opposite — that lis pendens was applicable and the plaintiff had no enforceable right of redemption. The plaintiff has appealed to the present Court.

A central factual contention before this Court is that the property in the defendant's mortgage suit was misdescribed: the defendant's suit allegedly described the property as Lakheraj Bahali land No. 57,505 while the correct number, according to the plaintiff, is No. 37,505. The plaintiff says he purchased No. 37,505 and therefore could not have known to redeem in the defendant's suit; the respondent conceded the number was erroneously given but suggested the property might still have been identifiable from the proceedings. The appellate court concluded that the identifiability question is essentially factual and should be determined by the District Judge after inspection of the mortgage-suit record and, if necessary, additional evidence.

Legal Issues Presented

  1. Whether the doctrine of lis pendens is applicable when the property involved in the earlier suit has been misdescribed in such a way that identification is impracticable.
  2. Whether a misdescription in the mortgage suit of the defendant, if of sufficient character to prevent identification, renders lis pendens inapplicable and thereby preserves the plaintiff's right to redeem.
  3. Whether a plaintiff who has impeached the defendant's mortgage as fraudulent in the present suit can nevertheless be permitted to redeem the defendant (this issue was raised by the District Judge and discussed by the Court).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The plaintiff purchased the estate numbered No. 37,505 and the defendant's mortgage suit described the property as No. 57,505; because of this misdescription the plaintiff could not reasonably have redeemed in the defendant's suit and did not know that the property he purchased was the subject of that suit.
  • Even if the plaintiff had attempted to redeem during the defendant's proceedings, he would have been met by the objection that the properties were not identical due to the misdescription.

Respondent's (Defendant's) Arguments

  • The respondent's counsel conceded that the number of the estate was erroneously given in the mortgage suit but argued that, notwithstanding the numerical error, the property might nevertheless have been identified from the proceedings.
  • The defendant asserted that the doctrine of lis pendens applies because the plaintiff's mortgage was created during the pendency of the defendant's mortgage suit (after institution of the defendant's suit and before the decree was made absolute), thereby extinguishing the plaintiff's right of redemption when the property was sold on 15 November 1901.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Section 52, Transfer of Property Act States that a right to immovable property must be directly and specifically in question in a suit for a decree to affect a purchaser pendente lite; requires a definite description or such general description that identity can be ascertained on enquiry. Used as the primary statutory foundation for holding that lis pendens requires sufficient accuracy of description in the pleadings so that the property can be identified.
Manika Gramani v. Ellappa Chetti, 19 M. 271 Illustrates that lis pendens does not apply when a right to immovable property is not specially in question (example: suit for maintenance). Applied as authority for the proposition that lis pendens only applies where immovable property is specifically in question; supports limitation of lis pendens.
Kailash Chandra Ghose v. Ful Chand Jaharri, 8 B.L.R. 474 Holds lis pendens had no application where title to immovable property was not specifically in question (example: suit for accounts against a managing partner). Used similarly to Manika Gramani to show situations where lis pendens is inapplicable because immovable property was not specifically in question.
Miller v. Sherry, 2 Wallace 237 (U.S. Supreme Court) Holds that to create lis pendens, the bill must be so definite in description that any one reading it can learn what property is intended to be subject of the litigation. Relied upon (via Bennet's exposition) to support the rule that the pleadings must describe the lis sufficiently to put the public on enquiry or enable identification from the description alone.
Bennet on Lis Pendens (authoritative text cited) Explains that lis must be sufficiently described in the pleadings to create the doctrine's effect. Quoted for the general proposition that pleadings must sufficiently describe the lis; supports the Court's reliance on precise description as prerequisite to lis pendens.
Watson v. Wellcox, 20 Am. Rep. (U.S. case) Shows that a correct description in one part of the notice of action can cure a slip in another part (false description treated as surplusage) where identification remains possible. Distinguished by the Court as a case where a correct description existed and a slip could be treated as surplusage; contrasted with cases where there is no correct description at all.
Norris v. Tle, 43 Am. St. Rept. 233 (U.S. case cited) Holds the description is sufficient if anyone reading the pleadings can learn what property is intended to be the subject of the litigation. Used to support the general American authority that sufficient descriptiveness in the pleadings is the test for lis pendens.
Newman v. Cheapman (notes cited) Collected cases on the sufficiency of description for lis pendens (referenced for comparative authority). Referenced to indicate the existence of a body of American decisions on descriptive sufficiency; supported the Court's comparative analysis.
Stout v. Philip Manufacturing Coy, 56 Am. S. Rep. 843 American authority referenced among cases discussing what description is sufficient to create lis pendens. Mentioned as part of the American jurisprudence illustrating the test of sufficiency of description in pleadings.
Surji Ram Marwari v. Barham Deo Persad, 2 C.L.J. 288 Authority cited for the proposition that in a mortgage suit the lis continues even after the decree nisi and lis pendens applies to proceedings to realise the mortgage after the decree for sale. Relied upon to show that if the property was sufficiently described in the mortgage suit, lis pendens would apply to sale proceedings and defeat the plaintiff's redemption claim.
Parsotam Narain v. Chheda Lal, 29 A. 76 Cited along with other authorities for the proposition about lis continuing during mortgage proceedings and applicability to sales. Used to support the legal consequence that, where description is sufficient, lis pendens applies during mortgage realisation proceedings.
Faiyaz Husain Khan v. Munshi Prag Narain, 5 C.L.J. 563 : 34 I.A. 102 Another authority cited for the proposition that lis pendens continues during mortgage proceedings. Used in combination with other authorities to show the legal consequence regarding mortgage suits and lis pendens.
Kokilasari Dasi v. Mohunt Rudranand Goswami, 5 C.L.J. 527 States that a plaintiff ordinarily must succeed on the case made in the plaint and an action instituted for a purpose apparently inconsistent with redemption cannot properly be converted into an action to redeem (subject to exceptions). The District Judge relied upon this case to deny redemption where the plaintiff had impeached the defendant's mortgage; the present Court distinguished that authority and noted exceptions where special circumstances exist.

Court's Reasoning and Analysis

The Court framed the central legal question narrowly: whether misdescription of the property in the earlier suit is sufficient to render the doctrine of lis pendens inapplicable. The Court considered the matter primarily under Section 52 of the Transfer of Property Act and by reference to authorities (both Indian and foreign) explaining the requirements for lis pendens.

Key elements of the Court's legal analysis:

  1. Statutory principle (Section 52): The Court emphasized that for a decree in a suit to affect a purchaser pendente lite, "a right to immovable property must be directly and specifically in question." The property must therefore be described either by such definite and technically legal description that its identity can be made out by the description alone, or by such a general description of its character or status that, upon enquiry, the identity can be ascertained.
  2. Role of description in pleadings: Drawing on authorities (including Manika Gramani, Kailash Chandra Ghose and American decisions such as Miller v. Sherry), the Court held that the pleadings must describe the lis with sufficient accuracy to enable identification. If nothing in the proceedings would put the public on enquiry or give a clue for further knowledge, the description must be so precise that any reader can learn what property is intended to be litigated.
  3. Distinction between curable slips and fatal misdescription: The Court distinguished cases where a clerical slip or an erroneous part of a description could be treated as surplusage (e.g., Watson v. Wellcox) from cases where there is no correct description at all. The latter situations can render lis pendens inapplicable because identification is impracticable.
  4. Factual determination required: The Court concluded that whether the misdescription in the defendant's mortgage suit was of such a character as to make identification impracticable is a question of fact. The materials before the appellate Court were inconclusive; therefore the appropriate course was to remit the matter to the District Judge for determination after calling for the records of the defendant's mortgage suit and, if necessary, taking additional evidence.
  5. Consequences of the factual finding: The Court directed that if the District Judge finds the property was not described with sufficient accuracy, the plaintiff would be entitled to redeem (in line with the Court of first instance). If the District Judge finds the description was sufficiently accurate (even though the estate number was inaccurately given), then the doctrine of lis pendens applies and the plaintiff's redemption claim must fail because lis continues during mortgage proceedings and applies to proceedings to realise the mortgage after decree for sale.
  6. On the point that the plaintiff had impeached the defendant's mortgage as fraudulent (an argument relied upon by the District Judge to bar redemption), the Court observed that the general principle in Kokilasari Dasi requires a plaintiff to succeed on the case pleaded, but acknowledged exceptions where special circumstances exist. The Court found the present case to fall outside the ordinary rule because both mortgagees had sued to enforce their securities while each impeaching the other's title; given the misdescription and the mutual attacks, the plaintiff's challenge to the defendant's mortgage was not a bar to a claim for redemption and should be considered in the factual inquiry on remand.

Holding and Implications

CORE RULING: The appeal is allowed; the judgment and decree of the District Judge are set aside and the case is remanded to the District Judge to determine, on the mortgage-suit records and any additional evidence necessary, whether the property in the defendant's mortgage suit was so inaccurately described as to render the doctrine of lis pendens inapplicable.

Direct consequences for the parties:

  • If the District Judge finds that the property in the defendant's mortgage suit was not described with sufficient accuracy (so that identification was impracticable), then the plaintiff will be entitled to redeem the defendant — consistent with the Court of first instance.
  • If the District Judge finds that the property was described with sufficient accuracy (even though the estate number was incorrectly given), the plaintiff's claim to redeem will fail because, in a mortgage suit, the lis continues during the decree nisi and lis pendens applies to proceedings to realise the mortgage after the decree for sale.
  • The District Judge is to call for the records of the defendant's mortgage suit and may take additional evidence as necessary; the case is to be remitted for early disposal.

Costs: The Court directed that the costs of this appeal will abide the result.

Note: This summary is confined to, and faithful to, the matters and authorities expressly discussed in the provided opinion. No facts or legal propositions beyond those set out in the opinion have been introduced.

Show full summary ...

    Loke Nath Sahu v. Achutananda Dass And Anr.

    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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    Comments

    Loke Nath Sahu v. Achutananda Dass And Anr.
    (Apr 29, 1909)