Patna High Court
Thakurai Bhup Narain Singh And Anr. vs Nawab Singh And Ors. on 14 August, 1957
Equivalent citations: AIR1957PAT729, 1957(5)BLJR694, AIR 1957 PATNA 729, ILR 36 PAT 1139
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. On this appeal, by the plaintiffs against the concurrent decisions of the courts below dismissing their suit, the only question presented for determination in support of the appeal is : Whether the purchase of the lands in dispute by defendants second party in a rent execution is hit by the doctrine of lis pendens because of a title suit in respect of these very lands brought by the plaintiffs against the defendants second party which was then pending, but was subsequently decreed?
2. This question of lis pendens was not raised in any of the courts below, but as it was a pure question of law, Mr. A. B. N. Sinha, who appeared for the appellants, Was permitted to raise it at the second appellate stage in this Court, as it did not require investigation, of any question of fact, and, as it arose on the facts as found by the courts below. This case is a very clear and simple one when once the various proceedings and dates are ascertained.
3. In order to appreciate this point, however, it is necessary to know a few facts bearing on this question:
4. Mahadeo Singh, the recorded tenant of the land in dispute, which is khata No. 40, having an area of 3.75 acres, in village Naubant, mentioned in Schedule A of the plaint, on the 31st August 1936, made a gift of all his properties, including the suit lands, to plaintiff no. 1. Thereafter, on the 3rd October, 1936, Mahadeo Singh executed a sale deed in respect of the suit lands in favour of the defendants second party, but it was not given effect to for want of consideration.
This, however, led to a dispute between the plaintiff, -- plaintiff 2 is the son of plaintiff 1- and the defendants second party, with the result that ultimately the plaintiffs in 1941 instituted a title suit-Title Suit No. 165 of 1941 / 113 of 1943 in respect of the suit lands against the defendants second party for declaration of their title to and recovery of possession of the same. Earlier in 1940, however, the defendants second party got a rent suit-Rent Suit No. 990 of 1940-instituted against Mt. Sona Kuer in respect of the disputed lands.
It may be stated here that Mahadeo Singh had no son. On the findings, he had two daughters, namely, Mt. Rajo Kuer, wife of plaintiff 1 and mother of plaintiff 2, and, Mt. Sona Kuer, but Rajo Kuer, died in the life time of Mahadeo Singh, whereas Mt. Sona Kuer was alive at the date of the rent suit. Defendant 2, subsequently, intervened in the rent suit, but Mt. Sona Kuer did not appear in the suit. The rent suit was ultimately decreed on the 22nd May, 1941, against the defendants second party. Defendant 2 and the other defendants, constituting the defendants second party, are members of a joint Mistakshara family, and, defendant 2 is its Karta.
In execution of this decree for arrears of rent in respect of the suit land, it was sold on the 21st July, 1942 and purchased by the defendants second party in the name of defendant 1, who is the sole defendant first party. On the 4th October, 1942, delivery of possession was given to the auction purchaser. Thereafter, the title suit was also decreed against the defendants second party and in favour of the plaintiffs, and, in execution of their decree, the plaintiffs on the 15th July, 1945, got delivery of possession over the suit land against the defendants second party. Thereafter, the plaintiffs settled the lands in suit with defendants 7 and 8 who are defendants third party in the suit.
5. On the above admitted facts, the question arises as to whether the purchase of the defendants second party in execution of a decree for arrears of rent passed in a rent suit brought earlier was affected by lis pendens in view of the subsequent title suit brought by the plaintiffs against the defendants second party in respect of the suit lands which was admittedly instituted before the execution sale, but was decreed thereafter.
6. It is clear from the above facts that the plaintiffs were claiming title to the suit lands on the basis of the gift in their favour, whereas the defendants second party based their claim on the basis of their purchase in the rent execution. On the above facts, therefore, the plaintiffs brought the present suit, out of which the present appeal arises, for declaration of their title to the suit lands, and, for a declaration that the defendants first and second parties had acquired no title by virtue of their auction purchase and delivery of possession in the rent execution and, they further asked for recovery of possession.
7. As the question of lis pendens was not raised earlier at any stage, we have not, therefore, the advantage of the opinions of the courts below on this question. On the admitted facts, however, the plea of lis pendens raised by Mr. Sinha is well founded, and it must prevail.
8. The doctrine of lis pendens is enacted in Section 52 of the Transfer of Property Act. This section is an expression of the principle of the maxim ut lite pendente nihil innovetur, which means, that pending a litigation nothing new should be introduced, and provides that pendente lite, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his opponent. It is intended to protect the parties to a litigation against alienations by their opponents during the pendency of the suit.
The law of lis pendens is an cxtention of the law of res judicata and makes the adjudication in the suit binding on alienees from parties pending suit, just as much as the law of res judicata makes the adjudication binding on the parties themselves and on alienees from them after the decree. It affects a purchaser pendente lite not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. If this were not so. there would be no certainty that the litigation would ever come to an end.
Ordinarily, it is true, the decree of the Court binds only the parties to the suit. But he, who purchased during the pendency of the suit, is bound by the decree, that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title, so acquired. As to them it is as if no such title existed. Otherwise, suits would be indeterminable; or which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined. The rule may sometimes operate- with hardship upon those, who purchase without actual notice : yet general convenience) requires its adoption; and even a mortgage, taken pendente lite, cannot be exempted from its operation.
The rule is, therefore, based on expediency, that is the necessity for final adjudication. It would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail: Bishop of Winchester v. Paine, (1805) 33 E. Rule 1062 (A), and Bellamy v. Sabine (1857) 44 E. Rule 842 (B).
9. The true scope if Section 52 of the Transfer of Property Act, therefore, is that it does not prevent the vesting of title in a transferee in a sale pendente lite but only makes it subject to the rights of other parties as decided in the suit. The effect of the doctrine of lis pendens is not to annual the conveyance, but only to render it subservient to the rights of the parties to the litigation. In other words, the effect of Section 52 is not to wipe out a sale pendente lite altogether, but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, jit is perfectly valid, and operates to vest the title of the transferor in the transferee.
The words "So as to affect the rights of any other party thereto under any decree or order which may be made therein" make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto. Hence the contention that a transferor pendente lite must for purposes of Section 52, be treated I as still retaining title to the properties cannot be accepted.
The broad purpose of Section 52 is to maintain the status quo unaffected by the Act to the parties to the litigation pending its determination, The applicability of the. section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in a bona fide proceeding. To apply any such test is to misconceive the object of enactment: Nagubai Animal v. B. Shama Rao, 1956 S.C.Rule 451: (S) AIR 1956 S. C. 593 (C); Gouri Dutt v. Sukur Mohammed, AIR 1948 P. C. 147: 75 Ind. App. 165 (D); and, Faiyaz Husain Khan v. Munshi prag Narain, 34 Ind. App. 102 (PC) CE).
10. Section 52 is limited by Section 2(d), and, strictly speaking, does not apply to court sales. But, it is now settled law that though the section itself by its express terms may not apply to an involuntary alienation, the principle of lis pendens applies to such an alienation. The strong weight of authority, though not in express language of the section is in favour of the view that the doctrine bf lis pendens applies to execution sales as well: Nilakant Banerji v. Suresh Chunder 12 Ind. App. 171 (PC) (F), Radhamadhub Holdar v. Monohur Mookerji 15 Ind. App. 97 (PC) (G), and Motilal v. Karhabuddin, 24 Ind. App. 170 (PC) (H).
11. The requirements of the section are: (1) the pendency of any suit or proceeding, (2) non-collusive character of such suit or proceeding, (3) any right to immovable property being directly and specifically in question, (4) the other party (other than the party making the transfer pendente lite) having some right under the decree in that suit or order in that proceeding. The consequence of the doctrine is that the transaction pendente lite shall not be allowed to affect the rights any other party thereto under the decree or order. It is of the essence of the rule if lis pendens that a right to immovable property is directly and specifically in question in the suit.
Suits in which no right to immoveable property is in question are outside the scope of the section. Suits for declaration of title to immovable property are suits in which rights to such immoveable property are directly and specifically in question, and, consequently the doctrine of lis pendens applies to such suits. The property to which the doctrine of lis pendens applies is the property which is the "subject matter of the suit. The lis commences on the date of the plaint, and not on date of the decree.
12. Applying the above tests to the present case, what do we find here? A title suit was instituted in 1941 by the plaintiffs against the defendants second party in respect of the suit land for declaration of their title to it and for recovery of possession of the same. In a rent suit, no doubt, instituted earlier in 1940, in respect of the suit land to which the plaintiffs were, of course, not parties, a decree was passed, and, in execution of that decree the suit land was put up to sale and purchased by the defendants second party during the pendency of the title suit, which was decreed subsequently.
In these circumstances, it is obvious that all the requirements for application of the doctrine of lis pendens are present in the present case, and, therefore, there is no reason why the purchase of the defendants second party should not be hit by the doctrine of lis pendens. It follows, therefore, that the plea of the defendants second party that they are purchasers of the suit lands, earlier to the decree, which was passed in the title suit, and, therefore, their claim to the property in dispute should prevail over the claim of the plaintiffs was in consequence not maintainable by, reason of the principle underlying the doctrine of lis pendens.
In these circumstances, lis pendens affected the purchase of the defendants second party, but such a purchase is no doubt binding between the parties to such a sale, but it cannot affect the rights of the other party to the suit, namely, the plaintiffs. The title suit instituted by the plaintiffs against the defendants second party operated as lis pendens, and, therefore, affected the purchase of the defendants second party. In the present case, there is no allegation of the title suit being either collusive or fraudulent. In my judgment, therefore, the purchase of the defendants second party could not prevail over the rights of the plaintiffs to the suit land.
13. The next question is, what should be the nature of the decree which should be passed in the present suit As the defendants second party purchased the suit land in execution of a decree for arrears of rent due in respect of the suit land, it is manifest that the plaintiffs were bound in law to pay the said arrears of rent. The plaintiffs, therefore can recover possession of the property in suit only on payment of the amount for which the defendants second party purchased the property in suit.
The plaintiffs, accordingly, will deposit the amount of the decree for arrears of rent for which the defendants second party purchased the suit land in court within three months from to-day, and on deposit of the same, they would be entitled to execute the decree for recovery Of possession of the property in suit. The amount of the purchase money by the defendants second party would be the amount which is mentioned in the sale certificate granted to the defendants second party, so that there be no dispute or uncertainty in future regarding the amount which the plaintiffs have to deposit in court.
14. In the result, the appeal succeeds. The judgments and decrees of the courts below are set aside, and, the plaintiffs' suit for possession is decreed, subject to the payment of the amount of money for which the defendants second party purchased the suit lands in execution of the decree for arrears of rent within the period specified above, and, the plaintiffs will recover possession on the lines indicated above.
15. The plaintiffs will not be entitled to costs of any court, or to any mesne profits.
Ramaswami, C.J.
16. I agree.