Patna High Court
Shyam Narain Singh And Ors. vs Khublal Mahto And Ors. on 29 August, 1967
Equivalent citations: AIR1968PAT238, AIR 1968 PATNA 238
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by the objectors opposite party is directed against the order of the learned additional Subordinate Judge, holding, on a reference made to him under Section 18 of the Land Acquisition Act, that respondents Kuer Nonia and Sahoran Nonia were entitled to two third share whereas the appellants were entitled to one third share in the amount of compensation in respect of the lands bearing plot No. 2280 to the extent of .025 acre, plot No. 2279 to the extent of 01 acre and plot No. 2283 to the extent of 03 acre, which were acquired for the construction of a village channel at Bhawalpur in the district of Saran These plots have bigger areas and the first two appertain to khata No. 420 whereas the third one appertains to khata No. 547 It may be stated here that Kuer Nonia (respondent No. 1) died during the pendency of this appeal and his heirs have been substituted on the record of this appeal.
2. The tacts giving rise to this appeal are these; The dispute in this case relates to the amount of compensation which is to be paid to the appellants on the one hand and the respondents on the other These lands, admittedly belonged to three brothers namely Ram Khelawan Misser, Namjad Misser and Jhoti Misser. One Dhuran Mehto happened to be the zarpeshgidar in respect of these lands. Ram Khelawan Misser died in state of ipintness with his other brothers leaving behind his widow Jagesara Kuer. She filed a title suit (No. 110 of 1938) against Namjad Misser. Jhoti Misser. Dhuran Mehto and five others for a declaration that she was entitled to get maintenance of Rs. 7 per month and she made a prayer that a decree for future maintenance may also be passed in her favour and a charge may be created on the properties mentioned in the plaint of that suit The suit was decreed on the 24th January 1939 holding that the plaintiff was entitled to yet maintenance at the rate of Rs. 4 per month with effect from the month of February 1939 and the properties mentioned in the plaint liable for the same (vide Exhibit 3 (a)) Maksudan Mahto was one of the sont of Dhuran Mahto and there was an insolvency case (No. 30 of 1936) in which Maksudan Mahto happened to be the insolvent. He had one-third share in the properties given in that zarpeshgi. The Nazir of the court was appointed receiver in that insolvency case and he transferred one third share in those properties in favour of Basudeo Singh. father of the present appellants by a sale deed dated the 25th June, 1937. It further appears that one Harihar had obtained a money decree in money suit No. 2 of 1939 against Namjad Misser and Jhoti Misser and he assigned that decree in favour of the appellants. That decree was executed in Money Execution case No. 972 of 1939 and the appellants purchased on the 10th February 1940 14 kathas and 16 dhurs of plot No. 2279 5 kathas and 13 dhurs of plot No. 2280, 15 kathas and 17 (27?) dhurs of plot No. 2283 and some other lands (vide the sale certificate Exhibit D) On the 20th April 1940 the present appellants took delivery of possession in respect of the lands they had purchased in Execution case No. 972 of 1939 and the certificate copy of the writ of delivery of possession has been marked Exhibit C. On the 8th March 1941 Mosammat Jagesara Kuer purchased two-third interest of 14 kathas and 16 dhurs of plot No. 2279, 5 kathas and 13 dhurs of plot No. 2280 and 15 kathas and 7 dhurs of plot No. 2283 in execution of the decree for maintenance against Namiad Misser, Jhoti Misser (brothers of Ram Khelawan Misser) and Dhuran Mahto This certificate of sale in Execution case No. 1522 of 1949 has been marked Exhibit 5. It was stated in the sale certificate that, out of the said plots one third had been excluded from auction sale by an order of the court in Miscelimeous case No. 73 of 1941 dated the 17th May 1941 and that the auction sale remained intact in respect of the two third share. Thereafter. Kuer Mahto and Sahoran Mahto instituted a title suit (No. 122 of 1941) against Mosammat Jagesara Kuer. Puran Mahto (son of Lachman Mahto and) Basdeo Singh (defendants 1, 2 and 3) for an adjudication that Puran Mahto and Basdeo Singh (and Jagesara Kuer) had acquired no title by virtue of a purchase at an auction sale held in execution case No. 1522 of 1940 in respect of the mortgagee's right of the plaintiff's nor could the mortgagee's right of the plaintiffs be adversely effected by the attachment and auction sale This suit came up for hearing on the 3rd September 1941 and the result that the suit was decreed in terms of compromise as against defendant No. 1 but dismissed against the other defendants for default. The certified copy of the compromise decree dated 3-9-1941 has been marked Exhibit 3 Prior to the compromise, Mosammat Jagesara Kuer had executed a sale deed (Ex. 1) on the 22nd August 1941 in favour of Kuer Mahto and Sahoran Mahto in respect of two-third interest in those three plots and the compromise decree was passed on the basis of this deed of sale. T have already indicated that one-third interest in those three plots was released from sale in Miscellaneous case No. 73 of 1941: but, being aggrieved by the order oassed in this case Jagesara Kuer filed a title suit (No. 65 of 1942) against Basdeo Singh and another for a declaration that the one third interest ought not to have been released from sale in Execution case No. 1522 of 1940 inasmuch as she (plaintiff) had a right to proceed against that interest also in execution of the decree for maintenance passed in her favour The suit was dismissed by the Munsif find then she preferred title appeal No. 49 of 1944 and the judgment the 6th December 1945 of that appeal has been marked as Exhibit E. The Additional Subordinate Judge held while dismissing the appeal, that Basdeo Singh (defendant No. 1) had purchased the property for value without notice which could not have been subject to the charges created by the decree for maintenance passed in favour of the plaintiff Mosammat Jagesara Kuer. He thus up held the order of release in respect of one-third share in those three plots. These facts are supported by the documents referred to above.
3. The learned Additional subordinate Judge held in the present case that on account of the decree for maintenance obtained by Mosammat Jagesara Kuer in Title suit No. 110 of 1938, a charge was created by the decree on the aforesaid three plots which were now claimed to have been purchased by Sham Narain and others (the appellants). The decree was not fully satisfied and, hence, the auction purchase by Sham Narain in Execution case No. 972 of 1939 was affected by the principle of lis pendens embodied in Section 52 of the Transfer of Property Act and was not protected under the provision of Section 100 of the same Act.
4. Learned counsel for the appellants assailed this finding and contended that the court below had completely overlooked the provisions of Section 100 of the Transfer of Property Act as it stood after the amendment in the year 1929. Section 100 of the Transfer of Property Act lays down.
"Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property, and all the provisions here-in-before contained which apply to a simple mortgage shall so far as may be apply, to such charge. Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust and save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. "
His contention was that the charge was, no doubt created on the properties by the decree for maintenance in Title Suit No. 110 of 1938 passed in favour of Mosammat Jagesara Kuer; but that charge could not be enforced against the appellants who had purchased those plots for consideration, as they had not notice of the charge Reliance was placed on Sheo Narain Sahu v. Lakhan Sahu, ILR 24 Pat 345 = (AIR 1945 Pat 434). A question arose in that case as to whether a charge created by a compromise decree passed on the 6th March 1930 in favour of the plaintiffs could be enforced against the defendants first party who claimed the property on the basis of a bonafide purchase at an auction sale in execution of a decree dated the 18th March 1930 obtained by the defendants third party against defendants second party without notice of the prior charge. On a review of numerous decisions including the decision in Mt. Indrani v.
Maharaj Narain, AIR 1937 Oudh 317 (FB), Beevour, J., delivering the main judgment held that even before the amendment of Section 100 Transfer of Property Act, in 1929, a bona fide auction-purchaser at a sale in execution of a decree was not bound by the equitable rights binding on the judgment-debtor of which he had no notice, and, after 1929 the position remained the same, whether Section 100, Transfer of Property Act applied to sales held in execution of decrees or not. Applying those principles to the facts of that case, his Lordship held that the plaintiff appellants had no title as against the contesting respondents. It is important to notice that the charge referred to in that case was created by the compromise decree, meaning, thereby that, when the parties had come to terms and entered into a compromise, the decree creating the charge was passed by the court in pursuance of the agreement between the parties; that is to say, it was a, charge created by an act of the parties. The opening words of Section 100 of the Transfer of Property Act make it quite clear that, where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, then the latter persons can be said to have a charge on the property; but the essential requisites are that the charge has to be created either by act of parties or by operation of law. To begin with, if there is a compromise between the parties it is an act of the parties and then the decree is passed on the basis of that compromise. In the present case before us, it is true that Mosammat Jagesara Kuer had filed Title suit No. 110 of 1938 for maintenance: but there was no compromise in that title suit and, as such no charge was created by an act of the parties. That suit was decreed and the court directed that the amount of maintenance would be a charge on the properties. That charge was created by the decree passed by the court and not by an act of the parties. The distinction between a charge created by an act of the parties and a charge created by the decree has to be kept in view while construing the provisions of section 100 of the Transfer of Property Act as has been laid down by numerous decisions. There is another decision of this court in Debendranath v. Trinayanidasi, ILR 24 Pat 245 = (AIR 1945 Pat 278) and this case was decided earlier to ILR 24 Pat 345 = (AIR 1945 Pat 434). In Debendranath's case ILR 24 Pat 245 = (AIR 1945 Pat 278), the decree-holder respondent had obtained a decree for maintenance against her husband at the rate of Rs. 100 per month and the said amount was made a charge on certain properties belonging to her husband. The appellant purchased a moiety share in a certain estate in which six annas share was purchased by a third party and the remaining two annas was purchased by the decree-holder to execution of her decree for maintenance in previous execution case. Thereafter, the decree holder filed an execution case for recovery of the arrears of maintenance and proceeded against the eight annas share purchased by the appellant. Most of the properties charged with the payment of maintenance as decreed in favour of the respondent had passed out of the hands of her husband. The appellant made an application under Section 47 of the Code of Civil Procedure objecting to realisation of the entire sum of Rs. 3,600 by sale of his share in the aforesaid property, An argument was advanced on the basis of the provisions of Section 100 of the Transfer of Property Act and, dealing with that argument, Sinha, J. as he then was, observed as follows.
"Another difficulty in the way of the applicability of Section 60 (last paragraph) of the Transfer of Property Act to this cast is that by virtue of Section 100 of the Act, it is only where immovable property of one person has been made security for the payment of money to another person by act of parties or by operation of law, that such a charge has been made analogous to a simple mortgage on that property. In the present case can it be said that the charge has been created either by act of parties or by operation of law? It has been held in the case of Mt. Basumati Kuer v. Mt. Harbansi Kuer. ILR 20 Pat 86 = (AIR 1941 Pat 95) that where a decree incorporates a compromise creating a specific charge upon the immovable property of a judgment-debtor, it is a charge within the meaning of Section 100 of the Transfer of Property Act on the well-established principle that a compromise decree is nothing more than a contract between the parties with the seal of the court superimposed: but nevertheless, it is an act of the parties. In this case it does not appear that the charge was created by consent of the parties. If that is so the charge was created by a decree of the court which, on the authority of the decision in Ghasiram Seth v. Mt. Kundanbai, AIR 1940 Nag 163 and Durga Prasad v. Mt. Tulsa Kuer, AIR 1939 All 579. is neither a charge created by act of parties nor one created by operation of law. Hence, Section 100 of the Transfer of Property Act cannot be said to apply to the present case."
The position in the present case is similar inasmuch as the charge was created by the decree and not by any compromise which alone could be said to be an act of the parties. Similar was the position in a later decision of a Divisional Bench of this court in Mt. Prem Kuer v. Ram Lagan Rai, AIR 1948 Pat 199. The appellant there had obtained a decree for past and future maintenance in the year 1928 against her mother-in-law. By that decree, arrears of maintenance and future maintenance were declared a charge on the properties which had been styled as lots 1, 2 and 3 in the proceedings which gave rise to two letters patent appeals. The landlords of the raiyati holding in question had purchased lot No. 1 in execution of a decree for arrears of rent obtained by them and they obtained delivery of possession in respect of the land purchased by them. They later on, transferred lot No. 1 to the respondents in one of the appeals who were described as transferees. The appellant executed her maintenance decree against lots 2 and 3 and, as a result of an auction-sale those two lots were sold to the same landlords who transferred those lots to the respondent transferees and the decree was satisfied. Future maintenance fell due and the decree holder again put the decree in execution seeking to sell lots 1, 2 and 3. Two objections were preferred by the landlords under Section 47 and by the transferees under order XXI rule 58 of the Code of Civil Procedure that the three lots could not be sold in execution firstly because the charge created by the decree was charge for realisation of the arrears of maintenance up to the date of the decree and not for future maintenance, secondly, that lot No. 1 having been sold in execution of a rent decree of the landlords could not be again sold in the present execution, and, thirdly, that the landlords and the transferees were bona fide purchasers for value without notice of the charge of the maintenance of the decree holder assuming that such a charge had been validly created. Regarding lots 2 and 3 the contention on behalf of the appellant was that the provisions of Section 100 of the Transfer of Property Act had no application inasmuch as the charge created by the decree was not a charge created by operation of law or by act of parties and, therefore the finding that the landlords and the transferees purchased those two lots bona fide without notice of the charge was immaterial and reliance was placed on ILR 24 Pat 245 = (AIR 1945 Pat 278) (referred to above). Manohar Lall, J. delivered the leading judgment and his lordship held that the transferee respondents had purchased lots 2 and 3 during the pendency of a litigation in which the right of the appellant to have her decree declared a charge on lots 2 and 3 was being prosecuted and Section 100 of the Transfer of Property Act not being applicable, the transferees had purchased the properties subject to the right of the decree-holder to sell lots 2 and 3. The contention on behalf of the respondents that the purchasers had no notice of the said charge and the maintenance decree had been fully satisfied in the previous execution case and, therefore, no further charge could exist in law on lots 2 and 3 was overruled by his lordship on the ground that even if they had no notice of the charge and the maintenance decree, the auction purchasers must be deemed to have constructive notice of that charge when they purchased the properties in execution of the very decree which amounted to a charge decree for future maintenance also. It was held that lots 2 and 3 continued to remain for ever charged with the maintenance decree, and the transferee-respondents could not object to the sale of those two lots. Learned counsel sought to distinguish this decision by urging that it was not necessary to express an opinion about the provisions of Section 100 of the Transfer of Property Act. But in my view this decision cannot be distinguished on that ground inasmuch as that section was specifically referred to in the argument advanced on behalf of the appellant and the decision rested on it.
5. A decree for future maintenance is executable on each default and no further suit is necessary for its execution (see Ashu-tosh Banerjee v. Lukhimoni Debya. (1892) ILR 19 Cal 139 (FB) which was referred to by Meredith, J. as he then was, in Sheonan-dan Pandey v. Mt. Asarfi Kuer, AIR 1946 Pat 216. The position therefore is that Mosammat Jagesara Kuer had got a decree for maintenance and the amount of maintenance had been made a charge on the properties in question. It was open to her to execute that decree for arrears of future maintenance and she did so when she filed execution case No. 1522 of 1940.
6. I will now refer to the decision reported in AIR 1957 Cal 204. Jata Bhusan Chatterjee v. Sm. Krishna Bhamini Debi in which the relevant observations are these:
"The first part of Section 100 of the Transfer of Property Act defines a charge and those are only charges contemplated by Section 100 Any charge that would be outside the limits of the definition would be outside the scope of Section 100 of the Transfer of Property Act. Of the two varieties of charges contemplated by this section, one, namely, a charge created by the act of parties, does not present any difficulty but as to charge created by operation of law two different views have been taken, one being that it includes a charge created by a decree and the other being that it does not include such a charge. In my opinion, a charge created by a decree would be one by operation of law only where the decree merely embodies a charge which exists in law apart from the decree itself. If a decree embodies a charge which has no existence in law independently of the decree itself, this, in my opinion, would be outside the definition of Section 100 of the Transfer of Property Act. A Hindu widow's right to maintenance is not however, in the fullest sense of the term, a charge on her husband's estate, though she has a right to be maintained out of that estate because it does not necessarily bind any part of such property in the hands of a purchaser. It becomes a complete charge if it be fixed and charged upon such property or a portion thereof by a decree or by an agreement or by a Will. That being so a charge for the payment of maintenance of a widow out of her late husband's estate, though created by a decree, may from one point of view be said to be one by operation of law and from another point of view one not by operation of law but by a decree only. Assuming, however, that it is a charge created by operation of law, though embodied in the decree, the question is whether the last part of paragraph 2 of Section 100 really prohibits the enforcement of this charge against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. In this connection, it must be noticed that the prohibition in the last part of the second paragraph of Section 100 is preceded by a qualification embodied in the phrase 'save as otherwise expressly provided by any law for the time being in force.' This, to my mind, is quite significant. "Where a charge is created by a decree, the instrument creating the charge is at the same time a decree. Therefore, it has a double character and is distinguishable from one which is merely an instrument creating a charge and not at the same time a decree. If it were merely an instrument creating a charge, it could be enforced only by a suit according to the first part of Section 100 but as it is at the same time a decree, it is capable of execution according to the provisions of law. That, to my mind, makes a charge created by a decree enforceable in execution as held in the Calcutta Full Bench case, (1892) ILR 19 Cal 139 (FB) already referred to."
This point has been elaborately dealt with in Mommadevara Naganna Naidu v. Janardhana Krishna Rangarao, AIR 1959 Andh Pra 622 (FB) and it was held that, if Section 100 of the Transfer of Property Act was construed as embracing a charge recorded in a decree, it would be causing hardship to person like a Hindu widow who would be put to the necessity of filing a suit to enforce such a charge as required by Order XXXIV Rule 14, read with Rule 15, of the Code of Civil Procedure, when the charge was merely declared on immovable property without a direction that the property was to be sold for arrears of maintenance. P. Chandra Reddy, C. J. observed that Section 100 was not intended to lead to such a result and, therefore, the conclusion, both on the language of the section and the preponderating judicial authority was that Section 100 was restricted in its operation to two categories of charges, one created by act of parties and the other by operation of law, and could not be extended to charges created by decrees of courts. The position, thus, is that, in the present case, a charge was created neither by an act of the parties nor by operation of law and, therefore, the provisions of Section 100 are not at all applicable in view of the two Division Bench decisions of this court reported in ILR 24 Pat 245 = (AIR 1945 Pat 278) and AIR 1948 Pat 199 (already referred to above). It is not possible for me to take a different view .
7. Learned counsel for the appellants submitted that the view taken by this court in those two cases should not be accepted as correct on account of a decision of the Supreme Court reported in AIR 1965 SC 834, Laxmi Devi v. Makund Kanwar. The appeal there arose out of an application filed by Shrimati Makund Kanwar, challenging the validity of an auction-sale held on the 14th May 1954 in execution of a money decree passed in favour of Ratan Lal Dani, respondent No. 2. and against Umrao Mal, respondent No. 3. Respondent No. 3 was the owner of the property in question and he had executed a document in favour of his mother, respondent No. 1, guaranteeing maintenance to her and creating a charge for the said maintenance over certain properties. Respondent No. 1 sued respondent No. 3 for arrears of maintenance and for the declaration that the properties specified in rhe plaint were subject to a charge for her maintenance and her suit was decreed for arrears of maintenance but no charge was created by the decree. She, however, filed an appeal and, on the 10th February 1954, a charge also was created by the appellate court It appears that respondent No. 3 had executed a mortgage in the year 1950 in respect of that property in favour of the appellant. Respondent No. 2 later obtained a money decree against respondent No. 3 and, in execution of his decree, he brought the property in question to sale; but the appellant happened to be the purchaser on the 14th May 1954 and her purchase on that date was subject to the mortgage in her favour. A question arose as to whether respondent No. 1 had locus standi to file an application for the setting aside of the auction-sale. She did not mention in her application that, as a result of the irregularity alleged therein, she had suffered substantial injury nor was there any mention in the sale proclamation of the charge in her favour. It was a common ground in that case that respondent No. 1 was the charge-holder as defined by section 100 of the Transfer of Property Act. Thereafter, their Lordships considered the latter part of Section 100 and held that the charge in favour of respondent No. 1 was not notified and mentioned in the sale proclamation and, hence, her interest was affected by the sale and she could put in an application for the setting aside of the sale provided the injury suffered by her amounted to a substantial injury within the meaning of Order XXI Rule 90(1) of the Code of Civil Procedure. That appeal was dealt with on the basis that as a result of the failure of the proclamation to refer to the charge in favour of respondent No. 1, she was not able to enforce her charge against the property purchased by the appellant by the auction-sale. The question as to whether the charge was created by an act of the parties or by operation of law or by the decree passed by the Court was not at all raised and, thus, their Lordships had no occasion to deal with that question. For this reason alone, it cannot be held that the view taken by this court with regard to the provisions of Section 100 of the Transfer of Property Act is no longer sound on account of the decision of the Supreme Court in AIR 1965 SC 834. I, thus, do not find any force in the contention raised by learned counsel for the appellants that the view taken by this court in the two cases referred to above is no longer sound and this appeal should be referred to a larger Bench with regard to the interpretation of the provisions of Section 100 of the Transfer of Property Act.
8. Section 52 of the Transfer of Property Act lays down:
"During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable 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 impure."
For the purposes of this section, the pendency of a suit or proceeding continues even till the complete satisfaction or discharge of the decree passed in the suit has been obtained. Keeping in view this principle of lis pendens, the question is as to whether this principle is applicable to the facts and circumstances of the present case. Admittedly. Mosammat Jagesara Kuer had got a decree for maintenance on the 24th January 1939 in Title Suit No. 110 of 1938 and a charge was created by that decree in respect of the lands the compensation for which is to be divided between the appellants on the one hand and the respondents on the other. She executed that decree and purchased two third share in those three plots on the 8th March 1941 (Vide sale certificate, Exhibit 5), But, prior to this purchase, the appellants had purchased on the 10th February 1940 those three plots in execution of a money decree. The position, therefore, is that their purchase is affected by the doctrine of lis pendens, as the decree obtained by Jagesara Kuer had not been satisfied till the 10th February 1940 and, thus, it is clear that the appellants purchased those three plots subject to the charge created by the decree passed in Title Suit No. 110 of 1938. A direct decision on this point is available in Arunachalam Iyer v. K. N. Lingiah and Bros., AIR 1953 Mad 71, which was relied upon by the Court below. It was observed in that case as follows: --
"Reading Section 100 in conjunction with Section 52 of the Transfer of Property Act it will be seen that a purchaser of properties subject to a charge created by a compromise decree the satisfaction or discharge of which has not been obtained or has not become barred by limitation does not get any assistance from the proviso to Section 100 of the Act even though he is a purchaser for value without notice of the charge. So long as the decree is not satisfied and is kept alive the purchase is hit by the rule of lis pendens irrespective of whether the purchase is a bona fide transaction or not.'' This observation in that, case was made, in relation to a charge created by a compromise decree; but, in the present case the position is much better and it has already been stated, there was no compromise and the Court passed the decree in Favour of Mosammat Jagesara Kuer creating a charge for her maintenance on the properties in question. It is thus, clear that the charge in the present case was not either by an act of the parties or by operation of law, meaning, thereby, that the provisions of Section 100 of the Transfer of Property Act were completely excluded and had no application to the facts and circumstances of the present case
9. Learned counsel for the appellants, further, submitted that the appellants had no notice of the charge created by the decree and he referred to the evidence of Shyam Narain Singh (O. P. W. 1), who is appellant No. 1. He said in his evidence that he had no knowledge of the decree of Jagesara Kuer: but this objection was not taken in she rejoinder filed by the appellants in the court below. No. issue was raised in that court as to whether the appellants had any notice of the charge and, as such, the respondents did not adduce any evidence on that point. There is nothing in the judgment under appeal about this point. Learned counsel for the appellants, however, referred to a previous judgment (Ex. E) in Title Appeal No. 49 of 1944 dated the 6th December 1945 in which Jagesara Kuer was the appellant and Basudeo Singh and another were the respondents. That appeal arose out of Title Suit No. 65 of 1942 and that suit was filed for setting aside the order passed in Miscellaneous Case No. 73 of 1941 relating to one-third interest in the three plots in question. The learned Additional Subordinate Judge, who decided that appeal, considered the question as to whether the plaintiff had succeeded in establishing that defendant No. 1 (Basudeo Singh, father of the present appellants) had purchased the disputed property with a notice of the charge of her maintenance decree. He observed that there was absolutely no evidence on this point adduced by the plaintiff but defendant No. 1 bad stated in his evidence that he had no notice of the said charge on that occasion. He believed his evidence and held that defendant No. 1 had purchased the property for value without notice and as such, the property purchased by him could not be subject to the charges created by the decree passed in favour of the plaintiff for maintenance. On that ground, he held that defendant No. 1 was entitled to get the disputed property released from sale. The plaint or the written statement of Title Suit No. 65 of 1942 has not been produced and it is not possible to ascertain as to what issues were framed in that case. The judgment of the trial court also is not before the Court. The nature of the dispute in that case and as to whether this matter was directly and substantially in issue there have to be determined by a reference to the plaint, the written statement and the issues; but the court is not in a position to pronounce any opinion on that point in the absence of the relevant documents. Moreover, the learned Additional Subordinate Judge, while deciding that appeal, was merely concerned, with the one-third interest which was claimed by the plaintiff, Mosammat Jagesara Kuer, and not the two-third interest which had been purchased by her. Any expression of opinion relating to the one-third interest cannot be of any assistance to the appellants with regard to the remaining two-third interest. For these reasons, the decision in that appeal cannot operate as res judicata in the present litigation.
10. The court below came to the conclusion that the appellants (objectors) were not in possession of the two-third interest in those three plots. Learned counsel for the appellant has challenged this finding There is no force in this contention.
[After discussion of evidence the judgment proceeds]:
I do not find any cogent reason for reversing the finding of the court below that the appellants never came in actual possession of more than one third share of these plots
11. Learned counsel for the appellants drew our attention to the provisions of Section 39 of the Transfer of Property Act and pointed out that, even according to that section, the right to receive maintenance could be enforced against the transferees only if they had notice thereof or if the transfer is gratuitious; but not against a transferee for consideration and without notice of the right, nor against such property in his hands. He contended that, the appellants having no notice of the right of maintenance given to Mosammat Jagesara Kuer by the decree, that right could not be enforced against the appellants. The notice, however, according to Section 3 of the Transfer of Property Act, may be either express or constructive. Section 3 indicates in what circumstances a person can be said to have notice of a fact and Explanation II lays down:
"Any person acquiring my immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof "
I have already indicated that the question of notice was not raised in the Court below. The determination of the question as to whether the appellants had notice of the said right depends upon evidence and facti have to be investigated for coming to a conclusion one way or the other The appellants cannot be permitted to raise this objection at this stage and the proper course for them was that they ought to have raised this question in the court below which would have enabled the respondents to adduce proper evidence on that point. This being the position, the contention raised on the basis of the provisions of Sec. 39 of the Transfer of Property Act has to be overruled.
12. Apart from the question of notice urged by learned counsel, the position in the present case is that a charge was created on the properties by the decree for maintenance passed in favour of Mosammat Jagesara Kuer and, thus, Section 39 of the Transfer of Property Act will have no application to the facts of this case as it does not deal with charges: (see AIR 1940 Nag 163). Moreover, Section 39 is of no assistance to the appellants inasmuch as they having purchased some interest in the properties charged while the decree creating the charge continued to remain unsatisfied, they were obviously persons bound by the decree by virtue of Section 52 of the Transfer of Property Act. This view gets support from the observations in Tirthabasi Ghose v. Bhuyani Trinavani Dasi. AIR 1951 Orissa 306 at p 310.
13. On a review of all the circumstances and the evidence, I am of the view that the court below was right in holding that the objectors (appellants) were entitled only to one-third share in the amount of compensation, whereas, Kuer Mahto (since deceased) and his brother Sahoran Mahto were entitled to two-third share.
14. In the result, the appeal is dismissed but without costs and the judgment and the decree of the court below are affirmed.
B.P. Sinha, J.
15. I agree.