Lawrence Jenkins, C.J.
1. The only question that arises on this appeal is, whether by a sale-deed of the 17th July 1900 immoveable property was transferred to the plaintiff by one Ningappa during the active prosecution of a contentious suit, so as to attract the operation of Section 52 of the Transfer of Property Act. The Suit, No. 460 of 1900, was filed by one Timaraddi on the 18th June 1900 against Ningappa, the present plaintiff’s vendor. The evidence according to the District Judge shows “that on the 14th July 1900 the first summons was returned unserved for want of a pointer-out; that on the 10th July Timaraddi applied that the summons might be served on a different village Hanchinal and that on the 12th July the bailiff reported that Ningappa saw, him and ran away. Eventually substituted service was effected on the 4h August 1900.”
2. It will thus be seen that the transfer was after the institution of the suit, but before service of the summons and on this ground the learned District Judge held that at the date of the transfer the suit had not become contentious.
3. The rule of lis pendens in this Presidency is statutory and rests on Section 52 of the Transfer of Property Act which runs as follows:-
During the active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor General in Council, of a contentious suit or proceeding 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 impose.
4. So the section imposes two conditions, (a) the existence of a contentious suit and (b) that the transfer should be during its active prosecution in a Court of the kind described in the section.
5. Speakiny generally I should be disposed to say that every real suit, to which the Civil Procedure Code applies, is prima facie contentious.
6. If we turn to the Code, we find as the essentials of a suit opposing parties, a subject in dispute, a cause of action and a demand of relief. And if all these be not only present, but real, it is difficult to see how that of which they are a part is not contentious.
7. The degree or absence of resistance on the part of the defendant before the Court can surely make no difference in this respect and so I hesitate to accept the suggestion that the expression contentious suit was used to exclude from the section friendly suits commonly so called. And I doubt whether the use of the word contentious in connection with probate proceedings furnishes us with a safe clue to its meaning in this section.
8. Still the word must have some value and on the whole I am inclined to think that it was used to introduce into the section the condition that the “suit must be real and not collusive.” (See Culpepper v. Aston (1982) 2 Ch. Cas. 116 and Sugden on Vendors and Purchasers, 14th Edn. p. 758). The word is apt for this purpose and its use in this meaning brings the section into conformity with the law as established on principle.
9. But it is not necessary to express any certain opinion on this point, for, without that there are other grounds on which I feel compelled to dissent from the conclusion at which the District Court has arrived.
10. There are cases which support the view of the District Judge and they are cited by him.
11. The earliest case is Radhasyam Mohapattra v. Sibu Panda (1888) I.L.R. 15 Cal. 647, where it was said “as a matter of fact there was no contentious suit or proceeding in existence until the summons to the suit brought by Defendant No. 1 against the Defendant No. 2 was served.” But no reason was given, for this view which is certainly not selfevident. Abboy v. Annamalai (1888) I.L.R. 12 Mad. 180 and Parsotam Saran v. Sanehi Lal (1899) I.L.R. 21 All. 408, follow this decision without throwing any light on the view propounded.
12. But in Jogendra Chunder Ghose v. Fulkumari Dassi (1899) I.L.R. 27 Cal. 77, Maclean C.J. and Banerjee J. clearly indicated that they were not prepared to accept as correct the view that there could not
be a contentious suit or proceeding until the service of summons on defendant and they, in fact, decided that Section 52 of the Transfer of Property Act applied, though the summons had not been served.
13. I find myself in complete accord with this conclusion: whatever the force of the word contentious may be, I find it impossible to think that it indicates a quality that cannot belong to a suit until service of summons, or that a suit in other respects contentious is not so, because the plaintiff may have been unable to serve the summons on the defendant.
14. But then it is said that the suit was not contentious because the decree was passed ex parte and Upendra Chandra Singh v. Mohri Lal Marwari (1904) I.L.R. 31 Cal. 745 is cited in support of this. But if it was intended in this case to lay down without qualification the proposition for which it is cited, I cannot agree with it; I prefer the decision in Annamalai Chettiar v. Malayandh Appaya Naik (1905) I.L.R. 29 Mad. 426, which is based on reasoning that clearly refutes the proposition for which the respondent contends.
15. Was then the transfer during the active prosecution of the suit ? On the findings of the District Judge I think it was; there was no inaction on the plaintiffs part.
16. The hardship to the purchaser cannot affect the decision of the case. I think, however, it may be worthy of consideration whether the risk of hardship could not be diminished by requiring a lis pendens to be registered before it can bind transferees for value. The decree of the District Court must be reversed and the suit dismissed against defendant 2 with costs throughout.
17. This is a question of lis pencdens, under Section 52 of the Transfer of Property Act. It appears that the plaintiff appellant filed a suit on 18th June 1900, that he made two attempts to serve the defendant with summons, the last on the 12th July 1900, that the defendant, though seen by the bailiff who was attempting to effect the service, ran away and successfully evaded it until the 4th of August 1900, that on the 7th July 1900 and therefore before he was actually served with the summons, the defendant sold the property to the respondent. The lower appellate Court held upon the authority of cases, which will presently be noticed, that the suit was not contentious until the defendant had been served and therefore that there was no lis pendens and Section 52 did not apply.
18. The question is, whether in these circumstances the sale to the respondent was forbidden by Section 52 of the Transfer of
19. The earliest case I have been able to find is Kailas Chandra Ghose v. Fulchand Jaharri (1871) 8 B.L.R. 474. There Couch C.J. said ” practically there is no difference between lis pendens and having notice of the suit.” Although there might be some theoretical objection to that rough general identification of the doctrines of notice and lis pendens, yet where the parties on both sides were acting in perfect good faith, the proposition might pass without occasioning any serious practical difficulty.
20. It is to be observed, however, that the difficulties, such as they are which now attend the subject, have arisen upon the wording of Section 52. After giving all the cases to which our attention has been drawn and upon some of which the conclusion of the lower appellate Court has been founded, best consideration, I doubt whether we are in perfect agreement with any of them.
21. In Radhasyam Mohapatra v. Sibu Panda it was first I think laid down that to make a suit contentious within the meaning of Section 52 summons must have been served on the defendant; and that until that was done, no suit could be “contentious.”
22. A year later the Madras High Court held in Abboy v. Annamalai (1888) I.L.R. 18 Mad. 180, that as soon as the filing of the plaint is brought to the notice of the defendant, the proceeding becomes contentious and any alienation subsequent to that is subject to the doctrine of lis pendens. In this judgment Collins C.J. adopted the reasoning of Couch C.J.
23. Both those cases were followed in Parsotam Saran v. Sanehi Lal (1899) I.L.R. 21 All. 408. In delivering judgment Straehey C.J. merely contented himself with saying that that Bench was prepared to follow those rulings “to which there is nothing contrary in any of the decisions of this Court.”
24. In Jogendra Chunder Ghose v. Fulkumari Dassi (1899) I.L.R. 27 Cal. 77, Maclean C.J. said, “It is said on the authority of the case of Radhasyam v. Sibu Panda, that a suit does not become contentious, until the summons has been served on the opposite party” pp. 83, 84.
25. Thus we are introduced to the English rule, that lis pendens did not begin till a subpoena had been served. Belamy v. Sabine (1857) De G. &. J. 566.
26. In Krishna Karnini Debi v. Dino Mony Chowdhurani (1904) I.L.R. 31 Cal. 658, a bench consisting of Prinsep and Harrington JJ. distinguished the last mentioned case and laid it down that a suit did not become contentious till the written statement had been filed.
27. And in Upendra Chandra Singh v. Mohri Lal Marwdri (1904) I.L.R. 31 Cal. 745, Ghose J., while doubting whether the rule had not been laid down a little too widely in some of the foregoing cases, said: “The section does not say a suit but a contentious suit, so that the rule of law laid down in the section is not applicable to any suit if there is only an active prosecution thereof.”
28. In Annamalai v. Malayandi (1905) I.L.R. 29 Mad. 426 a Full Bench of the Madras High Court held that a suit was for the purposes of Section 52 not the less a contentious suit, because it was subsequently compromised, and, as was done by Prinsep J. in Krishna Kamini Debi v. Dino Mony Chowdhurani (1904) I.L.R. 31 Cal. 658, turned to the Probate Court for a definition of the term contentious. It was said that the term contentious is used in Section 52 of the Transfer of Property Act in the sense in which it is used in probate practice and means the opposite of common form or voluntary business.
29. It will plainly appear from a consideration of these cases that there has been, as Maclean C.J. observed in Jogendra v.
Dassi (1899) I.L.R. 27 Cal. 77 some confusion of thought as to the precise relative bearing upon the point of time at which lis pendens attaches, of the terms “contentious ” and “during the active prosecution.” The former qualifies the whole doctrine, that is to say, that there can be no lis pendens without a contentious suit. The latter subject to that qualification defines the point of time at which the rule comes into operation. While, therefore, it certainly is necessary to have a clear understanding of what a “contentious” suit is, that is separable from the understanding of what is meant by the active prosecution of it. The former conditions the existence of lis pendens, the latter fixes the commencement and continuance of its existence.
30. I find myself unable to entirely agree with any of the cases I have cited. That which comes nearest to an accurate and correct statement of all that is involved in and required for the answer of the question now before us, appears to me to be the judgment of Ghose J. in Upendra Chandra Singh v. Mohri Lal Manvari (1904) I.L.R. 31 Cal. 745.
31. From the other cases we obtain the following definitions of a contentious suit. 1. A contentious suit is a suit in which the defendant has notice that a plaint has been filed, Per Couch and Collins C. JJ. 2. A contentious suit is a suit in which summons has been served on the defendant, Per Beverley and Norris JJ. and Strachey C.J. 3. When the event of the suit is known and proved to be contentious, Per Maclean C.J. 4. The English Rule that to make a suit contentious the subpoena must have been served. 5. A suit cannot be contentious until the defendant has put in a written statement, Per Prinsep and Harrington JJ. 6. A contentious suit is the opposite of what in Probate are common form or voluntary proceedings.
32. With the greatest respect to the eminent Judges responsible for these definitions I gravely doubt whether any of them are correct. Some of them are manifestly and demonstrably bad. As for example, 1, that the contentiousness or otherwise of a suit is to be judged by the event, or 2, determined by the defendant putting in a written statement. Suppose that a defendant, who has been duly served with notice and is perfectly aware of the active prosecution of a suit against him, disposes of all the
property, which is the subject-matter of that suit and having done so comes into Court and announces that he has no contention whatever to advance, looking only to the event that would not be a contentious suit, but could it be said that the alienations did not fall within the prohibitions of Section 52? Fixing the contentiousness or otherwise for the purpose of Section 52 of any suit upon the fact of the defendant having put in a written statement can be referred to no sound principle and has only the authority of a single recent case, which was almost immediately doubted.
33. Nor am I satisfied that when the term contentious was used in Section 52 of the Transfer of Property
Act, it was intended to have precisely the meaning it has in Section 253 A of the Indian Succession Act or in English probate proceedings.
34. I am clearly of opinion, that from the moment a suit of any sort whatever except only collusive suits, is filed, it is potentially contentious. So called friendly suits, I think certainly are. For the purpose then of conditioning the rule of lis pendens I would say that the filing of any but a collusive suit, is enough. But for the purpose of bringing the rule into operation, there must be an active prosecution of that suit. Now what is or what is not an active prosecution, must be from the very nature of the terms employed always in some degre3 a question of fact.
35. To say that although a suit is in its; nature contentious it is not actively prosecuted until the defendant has been served with notice, is, in my opinion, going too far. That would be going too far in the other direction to say that the mere filing of the plaint was enough in itself to attract the rule of lis pendens.
36. The most convenient practical rule in all cases where there was no delay on the part of the plaintiff and no evasion on the part of the defendant, would no doubt be that suggested in Radhasyam Mohapattra v. Sibu Panda (1888) I.L.R. 15 Cal. 647. But the facts of the case before us show how very unsafe it is to attempt to improve upon or stereotype the advisedly general language of an enactment, thereby introducing what may prove to be a new and altogether judge-made piece of law. Even in the phrase I have used a few sentences back “where there was no delay etc.”, the use of additional words intended to be words of definition, merely opens the door to fresh argument. For, opinions may always differ as to what constitutes delay. And that is why, in my opinion, the construction to be put upon the words “during the active prosecution ” should be left to the interpretation of the Courts with reference to the particular facts of each case as it comes before them.
37. Applying the strict rule to which the Calcutta Judges have so often inclined and which has still the authority of the Allahabad High Court, would in the present case and might constantly in other cases, put a premium on dishonesty.
38. However diligently the plaintiff might be prosecuting his suit, however contentious that suit might really be, there is no guarantee, that a defendant, who wished to defeat the plaintiff’s just claim, might not successfully evade service of summons until he had negotiated the sale of all the property upon which the plaintiff’s claim attached. That is in effect, what, if we understand the Courts below aright, they find, has happened in this case.
39. If we arc correct in this, then by applying the test of notice which had the approval of two eminent Chief Justices, there would be no difficulty in deciding that while the plaintiff was actively prosecuting a contentious suit, no counter equity had arisen on the other side owing to neither the defendant nor his vendee having in fact been aware of the plaintiff’s proceedings. I think that in this case there cannot be the least doubt but that there was a contentious suit and I think there can be no doubt but that the plaintiff was actively prosecuting it to the best of his ability and to the knowledge of the defendant. Therefore the impugned alienation falls within the prohibition of Section 52, Transfer of Property Act.