{"id":164421,"date":"1972-04-12T00:00:00","date_gmt":"1972-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayaram-mudaliar-vs-iyyaswaar-ors-on-12-april-1972"},"modified":"2018-06-12T11:22:28","modified_gmt":"2018-06-12T05:52:28","slug":"jayaram-mudaliar-vs-iyyaswaar-ors-on-12-april-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayaram-mudaliar-vs-iyyaswaar-ors-on-12-april-1972","title":{"rendered":"Jayaram Mudaliar vs Iyyaswaar & Ors on 12 April, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jayaram Mudaliar vs Iyyaswaar & Ors on 12 April, 1972<\/div>\n
Equivalent citations: 1973 AIR 569, \t\t 1973 SCR (1) 139<\/div>\n
Author: S Sikri<\/div>\n
Bench: Sikri, S.M. (Cj)<\/div>\n
           PETITIONER:\nJAYARAM MUDALIAR\n\n\tVs.\n\nRESPONDENT:\nIYYASWAAR & ORS.\n\nDATE OF JUDGMENT12\/04\/1972\n\nBENCH:\nSIKRI, S.M. (CJ)\nBENCH:\nSIKRI, S.M. (CJ)\nRAY, A.N.\nBEG, M. HAMEEDULLAH\n\nCITATION:\n 1973 AIR  569\t\t  1973 SCR  (1) 139\n 1972 SCC  (2) 200\n CITATOR INFO :\n RF\t    1973 SC2537\t (14)\n F\t    1975 SC1810\t (18)\n D\t    1981 SC 981\t (2,3,4,12,16)\n\n\nACT:\nTransfer  of  Property Act 4 of 1882-S. 52-Doctrine  of\t lis\npendens,  applicability\t of-Sale during pendency  of  suit..\nwhen  invalid--Doctrine whether applies to voluntary  sales-\nWhether applies to sale under Land Improvement Loans Act  19\nof 1883.\nMadras\tHigh Court Appellate Side Rules, 1955-Rule 28  Order\nIV  validity of Rule.\n\n\n\nHEADNOTE:\nThe  plaintiff-respondent  filed  a suit  for  partition  of\nproperties  men- the first defendant  (plaintiff's  brother)\nwas  the  Karta.   After the filing of the  suit  the  first\ndefendant and his sons made a voluntary sale of some of\t the\nproperties  in suit by sale deed Ex.  B7, to the  appellant.\nCertain\t other\tsuit properties mentioned in Ex.,  B51\twere\nsold  at a public auction under the provisions of  the\tLand\nImprovement Loans Act 19 of 1883 in connection with  arrears\nof a loan taken by the first defendant for the purchase of a\npump  set.  These properties were also purchased  .by  the,\nappellant.  The plaintiff-respondent challenged the validity\nof  the\t sales\tunder Ex.  B7 and Ex.  B51  relying  on\t the\ndoctrine of lis pendens embodied in s. 52 of the Transfer of\nProperty  Act.\t The .trial court held that the\t sales\twere\ngenuine\t and  that the proper-ties sold\t were  joint  family\nproperties, negativing the claim of the first defendant that\nthey  were his individual properties.  The doctrine  of\t his\npendens\t held to be applicable to the properties  sold.\t  In\nthe  decree  for part however the trial court  directed\t the\nCommissioner  who was to divide the properties by metes\t and\nbounds to allot to the share of the first defendant, so\t far\nas  possible, properties which were covered by Ex.   B7\t and\nB51.  The High Court in second appeal held that although the\nsale under Ex.\tB7 was made to satisfy the decree in certain\nmortgage  suits\t it was a voluntary sale and  could  not  be\nequated\t with sales in execution of mortgage  decrees  which\nare involuntary.  So far as the revenue sale under Ex.\t B51\nwas concerned the High Court after setting out the terms of\ns. 7 of Act 19 of 1883 held that only that land sold was  to\nbe excluded from the purview of the principle of lis pendens\nfor  the  improvement  of which some  loan  was\t taken.\t  It\ntherefore modified the decrees of the Courts below by giving\na  direction that further evidence should be  taken  before'\npassing\t a  final  decree to show what land  could  be\tthus\nexcluded  from\tpartition.   The  High\tCourt  rejected\t the\napplication  of\t the appellant for leave to  appeal  to\t the\nDivision   Bench  on  'the  ground  that  no  oral   request\nimmediately after delivery of judgment was made as  provided\nin  Rule 28 Order 4 of the Madras High Court Appellate\tSide\nRules  1965.  This Court however allowed special  leave\t to\nappeal\tunder Art. 136 of the Constitution.  Apart from\t the\nwrits  the  Court had to consider  a  preliminary  objection\nrequiring  the\tappeal to be dismissed in limine.   In\tthis\nconnection  the\t validity of Rule 28 Order 4 also  fell\t for\nconsideration\nHELD  : (i) Per Ray and Beg, JJ.-Rule 28 of Order 4  of\t the\nMadras High Court Rules does not purport to affect the power\nto  give  the declaration contemplated by clause 15  of\t the\nLetters Patent.\t It is evident that the rule is most  useful\nand necessary particularly when a period of thirty days only\nfor  filing an appeal has been prescribed by the  Limitation\nAct  1963.   The judge pronouncing the judgment\t can  decide\nthen  and  there, in the presence of the  parties  or  their\ncounsel,  whether  the case calls for a certificate.   In  a\nsuitable case, where a party is able to prove that it\n140\nwas  prevented\tdue to some cause beyond  its  control\tfrom\nasking for leave at the proper time, the judge concerned may\ncondone the delay or extend the time by applying s. 5 of the\nLimitation  Act.  This salutary rule could not therefore  be\nheld to be ultra vires or invalid. [143 F-H]\nPenu Balakrishna Iyer & Ors, v. Sri Ariya M. Ramaswami\tIyer\nJUDGMENT<\/a>:\n<\/pre>\n
In the present ease although the appellant was not shown  to
\nhave  attempted any explanation of failure to apply for\t the
\ncertificate  at\t the proper time, yet,\tthe,  special  leave
\npetition  having  been granted and the\tcase  having  passed
\nwithout\t objection, beyond the stage of interim\t orders\t and
\nprinting  of  records, the Court heard arguments  on  merits
\nalso.\n<\/p>\n
[144 F-G]
\nPer  Sikri, C.J. (concurring)-The High Court  can   regulate
\nthe  time at which and the manner in which  the\t application
\nfor certificate & WI be made.  Rule 28 Order 4 does not take
\naway  any right conferred by cl. 15 of the  Letters  Patent.
\nIt only regulates the manner of the exercise of that right.
\nUnion of India v. Ram Kanwar,<\/a> [1962] 3 S.C.R. 313,  referred
\nto.\n<\/p>\n
(ii) Per  Ray & Beg, JJ.-Expositions of the doctrine of\t lis
\npendens\t indicate that the need for it arises from the\tvery
\nnature of the jurisdiction of Courts and their control\tover
\nthe  subject  matter  of  litigation  so  that\tthe  parties
\nlitigating  before  them  may not remove  any  part  of\t the
\nsubject\t matter outside the power of courts to deal with  it
\nand thus make proceedings infructuous. [153C]
\nThe purpose of s. 52 of the Transfer of Property Act is\t not
\nto  defeat any just and equitable claim but only to  subject
\nthem to the authority of the Court which is dealing with the
\nproperty  to which claims are put forward.  In\tthe  present
\ncase the Courts had given directions to safeguard such\tjust
\nand  equitable\tclaims as the purchaser\t may  have  obtained
\nwithout\t  trespassing  on  the\trights\tof  the\t  plaintiff-
\nrespondent  in the joint property involved in the  partition
\nsuit  before the Court.\t Hence, the doctrine of lis  pendens
\nwas correctly applied.. [153H, 154A]
\nIn  regard  to\tthe sale under Ex.  B7 the  High  Court\t had
\nrightly distinguished cases cited on behalf of the appellant
\nbefore\tit by holding that exemption from the scope  of\t lis
\npendens\t cannot be extended to voluntary sales in any  case.
\n[149 A]
\nAn  examination of the sale deed Ex.  B7 disclosed  that  it
\nwas  not confined to the satisfaction of  decretal  amounts.
\nOther  items were also found in it.  The sale deed  did\t not
\npurport\t to be on behalf of the Hindu joint family of  which
\nthe  plaintiff and the first defendant could be said  to  be
\nmembers.   The\tsons of the first defendant were  among\t the
\nsellers\t but not the plaintiff.\t At most it could be a\tsale
\nbinding\t on the shares of the sellers.\tThe first  defendant
\nas  well as the appellant having denied that the  properties
\nin  dispute were joint, could not take up the position\tthat
\nthe  sales were binding on the whole family.   Therefore  it
\ncould not be held that the assumption of the High Court that
\nthe voluntary sale could not bind the whole family, of which
\nthe first defendant was the Karta, was incorrect.
\nBishan\t Singh\t v.  Khazan  Singh,<\/a>  [1959]   S.C.R-.\t878,
\ndistinguished.\n<\/p>\n
As  regards the revenue sale under Ex.\tB51  the  assumption
\nthat  the dues could be realised as arrears of land  revenue
\nwould only apply to the interest of the borrower so, far  as
\nclause 7(1)(a) of Act 19 of 1883 is concerned.\tThe  proviso
\nenacts that even recoveries falling under s. 7(1) (C) do not
\naffect prior interests of persons other than the borrower or
\nof  the\t party\twhich consents to  certain  loans.   In\t the
\npresent case the borrower had himself taken up the case that
\nthe  loan was taken by him individually, for the purpose  of
\npurchasing a pumping-set installed. on the
\n 141<\/span>
\nland.\tIt did not therefore follow that this liability\t was
\nincurred On behalf of the joint family unless it amounted to
\nan improvement of the joint land.  Every transaction of\t the
\nfirst  defendant  or  in respect of joint  property  in\t his
\npossession could not affect rights of other members. it\t was
\nfor  this reason that section 7(1) (a) was not\tspecifically
\napplied\t by  the  High Court.  But at the  same\t time,\tthe
\ndirection,  that  the  properties sold\tshould,\t so  far  as
\npossible, be allotted to the first defendant meant that\t the
\npurchaser  could enforce his rights to them if they came  to
\nthe share of the first defendant. [151D-F]
\nWhere  a statutory provision is relied upon for recovery  of
\ndues, the effect of it must be confined to what the  statute
\nenacts.\t Even under the English law the terms of the statute
\ndisplace  any claim based on the prerogatives of the  Crown.
\nAnd  in no case can the claim whatever its basis, justify  a
\nsale  of that property which does not belong to\t the  person
\nagainst whom the claim exists. [151H]
\nBuilders Supply Corporation v. The Union of India, [1965]  2
\nS.C.R.\t289 and Attorney-General v. Dekerysis Royal  Hotel.,
\nLtd., [1920] A.C. 508, referred to.\n<\/p>\n
Per Sikri C.J. (concurring)-Section 42 of the Madras Revenue
\nRecovery  Act  provides that all lands brought\tto  sale  on
\naccount\t of  arrears of revenue shall be sold  free  of\t all
\nencumbrances.  The liability of the land to be sold under s.
\n7(c) of the Act was a pre-existing charge and that subsisted
\nas from the date of the loans.\tThis was not affected by the
\ninstitution of the suit for partition.\tThis change could be
\nenforced  by the State notwithstanding the pendency  of\t the
\npartition suit.\t No decree in the partition suit could\thave
\naffected the charge.  Therefore, if the State had sold\tonly
\nthe  property  in  respect  of\twhich  loan  was  taken\t the
\npurchaser  was\tnot  prejudiced\t by  the  principle  of\t lis
\npendens.   Therefore  the direction of the  High  Court\t was
\nright insofar as it directed the trial court to separate the
\nproperties for the improvement of which the loans under\t the
\nLand  Improvement  Loans  Act were  taken,  from  the  other
\nproperties. [159H-160B]<\/p>\n
&
\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2152 of 1968.
\nAppeal by special leave from the _judgment and decree  dated
\nJuly 19, 1968 of the Madras High Court in Second Appeal\t No.
\n1173 of 1964.\n<\/p>\n
M.   C.\t Chagla, R. Gapalakrishnan and T. L. Garg,  for\t the
\nappellant.\n<\/p>\n
M.   K.\t Ramamurthi, Ramamurthy and Vineet Kumar,  for\tres-
\npondents Nos. 1 and 6 to 9.\n<\/p>\n
The Judgment of A. N. RAY and M. H. BEG was delivered by BEG
\nJ. SIKRI C.J. gave a separate Opinion.\n<\/p>\n
Beg, J. Jayaram Mudaliar, the Appellant before us by Special
\nLeave, purchased some lease hold land for Rs. 10,500\/-\tfrom
\nMunisami  Mudaliar and others under a sale deed of  7-7-1958
\n(Exhibit  B-7)\tand  some  other  lands\t shown\tin  a  sales
\ncertificate dated 15-7-1960, (Exhibit B-51) sold to him\t for
\nRs.  6,550\/- at a public auction of immovable property\theld
\nto  realise the dues in respect of loans taken\tby  Munisami
\nMudaliar  under the Land Improvement Loans’ Act 19 of  1883.
\nBoth  Jayaram and Munisami, mentioned above, were  impleaded
\nas co-defendants in a
\n142<\/span>
\nPartition  suit,  in  Vellore, Madras,,\t now  before  us  in
\nappeal,\t commenced by a pauper application  dated  23-6-1958
\nfiled by the plaintiff-respondent Ayyaswami Mudaliar so that
\nthe  suit must be deemed to have been, filed on\t that  date.
\nThe  plaintiff\trespondent before us had challenged,  by  an
\namendment  of his plaint on 18-9-1961, the validity  of\t the
\nsales of land mentioned above, consisting of items given  in
\nschedule ‘B’ to the plaint, on the ground, inter-alia,\tthat
\nthese  sales, of joint property in suit, were struck by\t the
\ndoctrine of lis pendens embodied in section 52 of the Indian
\nTransfer of Property Act.  As this is the sole question,  on
\nmerits, raised by the appellant before us for consideration,
\nwe will only mention those facts which are relevant for\t its
\ndecision.\n<\/p>\n
Before, however, dealing with the above-mentioned  question,
\na preliminary objection to the hearing of this appeal may be
\ndisposed of.  The Trial Court and the Court of first  appeal
\nhaving\theld  that the rule of lis pendens  applied  to\t the
\nsales  mentioned above, the appellant purchaser had filed  a
\nsecond\tappeal\tin  the\t High Court  of\t Madras,  which\t was
\nsubstantially dismissed by a learned Judge of that Court, on
\n19-7-1968,  after  a modification of the decree.   Leave  to
\nfile a Letters Patent appeal was not asked for in the manner
\nrequired  by Rule 28, Order IV of the Rules of\tMadras\tHigh
\nCourt, which runs as follows
\n\t      “28.   When  an appeal  against  an  appellate
\n\t      decree or order has been heard and disposed of
\n\t      by  a  single  Judge, any\t application  for  a
\n\t      certificate  that\t the case is a fit  one\t for
\n\t      further appeal under clause 15 of the  Letters
\n\t      Patent  shall be made orally  and\t immediately
\n\t      after the judgment has been delivered.”\n<\/p>\n
But, the appellant, after obtaining certified copies of\t the
\njudgment and decree of the High Court, sent a letter to\t the
\nRegistry  that\tthe case be listed again  for  obtaining,  a
\ncertificate  of\t fitness to file a Letters’  Patent  appeal.
\nThe case was, therefore, listed before the learned Judge and
\nan  oral  application  which was then made for\tgrant  of  a
\ncertificate, was rejected on 6-9-1968 on the ground that  it
\nhad not been made at the proper time.\n<\/p>\n
It was contended, on behalf of the respondent, that, in\t the
\ncircumstances stated above, the appellant must be deemed  to
\nhave  been satisfied with the Judgment of the High Court  as
\nhis Counsel did not ask for leave to file a Letters’  Patent
\nappeal\tas required by Order IV Rule 28 of the Rules of\t the
\nMadras\tHigh  Court (that is to say, immediately  after\t the
\njudgment has been delivered). The following observations  of
\nthis  Court in Penu Balakrishna Iyer & Ors. v. Sri Ariva  M.
\nRamaswami<\/a>  lyer\t & Ors.(1) were cited to contend  that,\t the
\nappeal before us should be rejected in limine :
\n(1)  [1964] 7 S.C.R. 49 @ 52-53
\n143<\/span>
\n.lm15
\n“Normally, an application for special leave against a second
\nappellate decision would not be granted un-. less the remedy
\nof a Letters Patent Appeal has been availd of.\tIn fact,  no
\nappeal\tagainst\t second appellate decisions  appears  to  be
\ncontemplated  by the Constitution .as is evident  from\tthe,
\nfact  that Art. 133(3) expressly provides that\tnormally  an
\nappeal will not lie to this Court from the judgment, decree,
\nor  final order of one Judge of the High Court.\t It is\tonly
\nwhere  an  application for special leave  against  a  second
\nappellate   judgment  raises  issues  of  law\tof   general
\nimportance  that the Court would grant the  application\t and
\nproceed to deal with the merits of the contentions raised by
\nthe appellant.\tBut even in such cases, it is necessary that
\nthe remedy by way of a Letters’ Patent Appeal must  resorted
\nto before a party comes to this Court”.\n<\/p>\n
In reply to the preliminary objection, Mr. Chagla, appearing
\nfor  appellant,\t has  assailed the  validity  of  the  above
\nmentioned Rule 28 of Order IV itself.  It is submitted\tthat
\nthe  rule conflicts with the provisions of clause 15 of\t the
\nLetters’ Patent of the Madras High Court requiring only that
\nthe  Judge who passed the Judgment should declare  that\t the
\ncase is fit one for appeal as a condition for appealing.  It
\nwas urged that the period of limitation for filing an appeal
\nshould not, in effect, be cut down by a rule such as the one
\nfound  in  Rule\t 28, Order IV of the Rules  of\tMadras\tHigh
\nCourt.\t It  was  urged\t that, before  article\t117  of\t the
\nLimitation  Act of 1963 introduced a period of\tthirty\tdays
\nfrom  a decree or order for filing a Letters Patent  appeal,
\nthe  period  of limitation for such appeals fell  under\t the
\nresiduary  article  181\t of  the  old  Limitation  Act.\t  As
\napplications for certification fen outside the provisions of
\nthe Civil Procedure Code and there was no specific provision
\nfor  them in the Limitation Act the High Court\tcould  frame
\nits  own rule prescribing the mode and time for making\tsuch
\napplications.\n<\/p>\n
Rule  28  of  Order IV of the Madras  High  Court  does\t not
\npurport\t to  affect  the  power\t to  give  the\t declaration
\ncontemplated by clause 15 of the Letters’ Patent,.  In\tsome
\nHigh Courts, there is no rule of the Court laying down\tthat
\nthe  application should be oral and made  immediately  after
\nthe  judgment has been delivered.  It is,  however,  evident
\nthat  a\t rule such as Rule 28 of Order IV  the\tMadras\tHigh
\nCourt  is  most\t useful and necessary  particularly  when  a
\nperiod\tof  thirty days only for filing an appeal  has\tbeen
\nprescribed in 1963.  The Judge pronouncing the judgment\t can
\ndecide\tthen and there, in the presence of parties or  their
\ncounsel,  whether  the case calls for a certificate.   In  a
\nsuitable  case, where a party is able to prove that  it\t was
\nprevented  due to some cause beyond its control from  asking
\nfor  leave  at\tthe proper time,  the  Judge  concerned\t may
\ncondone non-compliance
\n144<\/span>
\nby a party with Rule 28, Order IV, of the Madras High Court,
\nor extend time by applying Section 5 of the Limitation\tAct.
\nThis salutary rule could not, therefore, be held to be ultra
\nvires or invalid.\n<\/p>\n
There is, however, another answer to the preliminary  objec-
\ntion.\tIt was contended that the case before us is  covered
\nby  what  was laid down by this Court  in  Penu\t Balakrishna
\nIyer’s case (Supra) when it said (at page 53)
\n\t       “..we  do not think it would be\tpossible  to
\n\t      lay down an unqualified rule that leave should
\n\t      not be granted if the party has not moved\t for
\n\t      leave  under the Letters Patent and it  cannot
\n\t      be so granted, nor is it possible to lay\tdown
\n\t      an  inflexible  rule that if in  such  a\tcase
\n\t      leave  has  been granted it  must\t always\t and
\n\t      necessarily be revoked.  Having regard to\t the
\n\t      wide  scope  of the powers conferred  on\tthis
\n\t      Court under Art. 136, it is not possible\tand,
\n\t      indeed, it would not be expedient, to lay down
\n\t      any general rule which would govern all cases.
\n\t      The question as to whether the jurisdiction of
\n\t      this Court under Art. 136 should be  exercised
\n\t      or  not,\tand  if\t yes,  on  what\t terms\t and
\n\t      conditions,  is a matter which this Court\t has
\n\t      to decide on the facts of each case”.\n<\/p>\n
In  that particular case, this Court had actually heard\t and
\nallowed\t the  appeal by Special leave because it  held\tthat
\nthere  was  no general inflexible rule\tthat  special  leave
\nshould be refused where the appellant has not exhausted- his
\nrights by asking for a certificate of fitness of a case\t and
\nbecause that case called for interference.
\nIt  is urged before us that the appellant had done  whatever
\nhe  possibly  could, in the circumstances of  the  case,  to
\napply  for and obtain a certificate of fitness\tafter  going
\nthrough\t the  judgment of the High Court, so that  the\trule
\nthat alternative modes of redress should be exhausted before
\ncoming\tto this Court had been really complied with.   Each.
\ncase must, we think, be decided upon its own facts.  In\t the
\ncase before us, although the appellant was not shown to have
\nattempted  any\texplanation  of failure\t to  apply  for\t the
\ncertificate  at\t the proper time, yet, +,he  special  leave
\npetition  having been granted, and the case  having  passed,
\nwithout\t objection, beyond the stage of interim\t orders\t and
\nprinting of the records, we have heard arguments on  merits,
\nalso.  The merits may now be considered.\n<\/p>\n
The  challenge on the ground of lis pendens, which had\tbeen
\naccepted  by  the  Courts in Madras, right up  to  the\tHigh
\nCourt,\twas directed against two kinds of sales :  firstly,%
\nthere was the ostensibly voluntary sale of 7-7-1958 under  a
\nsale  deed by the defendant Munisami Mudaliar and his  major
\nson  Subramanian Mudaliar and three minor sons\tJagannathan,
\nDuraisami alias
\n\t\t\t    145<\/span>
\nThanikachalam,\tand Vijayarangam in favour of the  defendant
\nappellant;  and, secondly, there was the sale  evidenced  by
\nthe,. sale certificate (Exhibit B. 51) of 15-7-1960  showing
\nthat the auction sale was held in order to realise  certain,
\n“arrears  under\t hire  purchase system due  to\tShri  O.  D.
\nMunisami  Mudaliar. The words “due to” must in the  context,
\nbe  read  as  “due from”‘ because  “falsa  demostration\t non
\nnocet”.\n<\/p>\n
The deed of the voluntary sale for Rs. 10,5001\/- showed that
\nRs. 7375.11 Ans. were to be set off against the money due on
\na.  decree obtained by the purchaser against the sellers  in
\noriginal.  suit\t 2\/56 of the Vellore Sub-Court ,  Rs.  538.5
\nAns. were left to liquidate the amount due for principal and
\ninterest due to the purchaser on a bond dated 14-10-1957, by
\nMunisami  Mudaliar,  Rs.  662.9 Ans. was to be\tset  off  to
\nliquidate another amount due to the purchaser from  Munisami
\non  account of the principal and, interest on  another\tbond
\nexecuted  by Munisami, Rs. 1250.0.0 was left to pay off\t and
\nliquidate  the\tbalance of a debt due  to  one\tThiruvenkata
\nPillai\tfrom  Munisami, Rs. 100.0.0 were meant to  settle  a
\nliability  to  the Government in respect of  a\tpurchase  of
\ncattle and for digging of some well, Rs. 51.13 Ans. were  to
\ngo,  towards  settling\ta similar liability,  and  only\t Rs.
\n521.11 Ans. were paid in cash to the seller after  deducting
\nother  amounts\tfor meeting liabilities most of\t which\twere
\nshown  as  debts  to  the  purchaser  himself.\t It  may  be
\nmentioned  here that, on 17-1-1944, Munisami had executed  a
\nmortgage  of  some of the property in Schedule\t‘B’  of\t the
\nplaint for Rs. 7,500\/  in favour of Kannayiram, and he\thad
\nexecuted  a  second  mortgage  in respect  of  one  item  of
\nproperty  of  Schedule ‘B’ in favour of Patta Mal,  who\t had
\nassigned  his rights to T. Pillai.  A third mortgage of\t the
\nfirst item of Schedule ‘B’ properties was executed on  27-5-
\n1952  by Munisami, in favour of the appellant  Jayaram,\t was
\nsaid  to be necessitated by the need to pay arrears  of\t Rs.
\n3,000\/-\t incometax and for discharging a debt and a  promote
\nin favour of a man called Mudali.  In 1955, an original suit
\nNo.  124\/1955 had been filed by T. Pillai who  had  obtained
\norders\tfor  the  sale of the first  item  of  Schedule\t ‘B’
\nproperties shown in the plaint.\t The original suit No. 2  of
\n1956 had been filed for principal and interest due on  27-5-
\n1952 to the appellant who had obtained an attachment on 5-1-
\n1956  of  some schedule ‘B’ properties.\t The  appellant\t had
\nobtained a preliminary decree on 25-1-1956 in his suit and a
\nfinal decree on 14-9-1957.  All these events had taken Place
\nbefore\tthe institution of the partition suit on  23-6-1968.
\nBut,  the  voluntary sale to satisfy  decretal\tamounts\t was
\nexecuted   after  this\tdate.\tThe  second  sale   was\t  an
\ninvoluntary   sale  for\t realisation  of  dues\t under\t the
\nprovisions of section 7 of the Land Improvement Loans Act 19
\nof 1883 which could be realised as arrears of land  revenue.
\nThere  was nothing in the sale certificate to show that\t the
\ndue for-\n<\/p>\n
146<\/span><\/p>\n
which  properties  were\t sold  were  of\t anyone\t other\tthan
\nMunisami individually.\n<\/p>\n
On the facts stated above, the appellant Jayaram claims that
\nboth kinds of sales were outside the purview of the doctrine
\nof  lis\t pendens  inasmuch as both the sales  were  for\t the
\ndischarge  of  preexisting liabilities of  the\tHindu  joint
\nfamily\tof  which Munisami was the karta.   The\t liabilities
\nincurred  by  Munisami, it was submitted, as  karta  of\t the
\nfamily,\t had to be met, in any case, out of  the  properties
\nwhich were the subject matter of the partition suit.  It was
\nurged that where properties are liable to be sold for,\tpay-
\nment  of  such debts as have to be discharged by  the  whole
\nfamily,\t ,only\tthose  properties  would  be  available\t for
\npartition  in the pending suit which are left  after  taking
\naway  the  properties  sold  for  meeting  the\tpre-existing
\nliabilities  of the joint family.  In the case of  the\tsale
\nfor discharging dues under the Land Improvement Loans Act it
\nwas also contended that they obtained priority .,over  other
\nclaims,\t and, for this additional reason, fell outside,\t the
\nscope of the principle of lis pendens.\n<\/p>\n
The   defendant-respondent   Munisami  and   the   defendant
\nappellant  Jayaram had both pleaded that the  properties  in
\nsuit  were acquired by Munisami with his own funds  obtained
\nby separate business in partnership with a stranger and that
\nAyyaswami, plaintiff, had no share in these properties.\t The
\nplaintiff respondent’s case was that although the properties
\nwere  joint,  the  liabilities\tsought\tto  be\tcreated\t and
\nalienations made by Munisami were fraudulent and not for any
\nlegal necessity, and, therefore, not binding on the  family.
\n‘
\nThe  Trial  Court  had found that the  properties  given  in
\nSchedule  ‘B’  were  joint family properties  of  which\t the
\ndefendant  respondent Munisami was the karta in\t possession.
\nThis  finding was affirmed by the first Appellate Court\t and
\nwas  not touched in the High Court.  It did not follow\tfrom
\nthis finding that all dealings of Munisami with joint family
\nproperties, on the wrong assumption that he was entitled  to
\nalienate them as owner and not as karta, would automatically
\nbecome\tbinding\t on  the  joint family.\t  A  karta  is\tonly
\nauthorised to make alienations on behalf of the whole family
\nwhere  these  are supported by legal necessity.\t It  was  no
\nparty’s\t case that the alienations were made on\t behalf\t of,
\nand, therefore, were legally binding on the joint family  of
\nwhich plaintiff-respondent Ayyaswami was a member.,
\nThe  Trial  Court recorded a finding on\t which\tthe  learned
\nCounsel for the appellant relies strongly : “There is  over-
\nwhelming documentary and oral evidence to show that the sale
\ndeed  Exhibit  B.7  and the revenue sale are  all  true\t and
\nsupported by consideration and that the 12th Defendant would
\nbe entitled to them, if these sales were not affected by the
\nrule of lis pendens ‘Within the meaning of Section 52 of the
\nTransfer of Property Act.”\n<\/p>\n
147<\/span><\/p>\n
It may be mentioned here that the 12th Defendant is no other
\nthan,  the  appellant Jayaram Mudaliar,\t the  son-in-law  of
\ndefendant  respondent Munisami Mudaliar, who  had  purchased
\nthe properties covered by both the impugned sales.  The plea
\nof  the\t plaintiff-respondent Ayyaswami that  the  sales  in
\nfavour of Jayaram, the 12th   defendant-appellant,\twere
\nfraudulent  and fictitious and the trial Court’s decree\t for
\nthe  partition included the, properties covered by  the\t two
\nimpugned  sales\t evidenced by Ex.  B.7 and B.5 1,  yet,\t the
\nCommissioner  who was to divide the properties by metes\t and
\nbounds, was directed to allot to Munisami’s share, so far as
\npossible, properties which were covered by Exhibit B.7,\t and
\nB.51.  This  implied  that the liabilities  created  by\t the
\ndecrees\t for whose satisfaction the sale deed  dated  7-7-58
\n(Exhibit B-7) was executed and the revenue sale of 16-3-1960
\nfor  loans under an agreement were treated as  the  separate
\nliabilities  of the defendant Munisami and not those of\t the
\njoint family.\n<\/p>\n
The  Trial  Court as well as the First Appellate  Court\t had
\nalso   rejected the plea that the revenue sale of  16-3-1960
\nto  satisfy  pre-existing liabilities of  Munisami  had\t any
\npriority over the rights of the plaintiff-respondent may get
\nin  the partition suit.\t The result was that  the  partition
\nsuit was decreed subject to a direction for the allotment of
\nthe Properties covered by Exhibit B. 7 and B. 51 so
\nthat the purchaser may retain these properties if they\twere
\nallotted to Munisami.\n<\/p>\n
The High Court of Madras had described the sale of  7-7-1958
\nas  a “voluntary alienation”, and, thereby, placed it  on  a
\nfooting different from an involuntary sale in execution of a
\ndecree in a mortgage suit.  The obligations incurred  before
\nthe  sale  of  7-7-1958, by reason of  the  decrees  in\t the
\nmortgaged  suits, were not on this view,  liabilities  which
\ncould  be  equated  with  either  transfers  prior  to\t the
\ninstitution of the partition suit or with sales in execution
\nof  mortgage decrees which are involuntary.  So far  as\t the
\nrevenue\t sale was concerned, the High Court,  after  setting
\nout the terms of Section 7 of the Land Improvement Loans Act
\n19  of-\t 1883,\theld  that only that land  sold\t was  to  be
\nexcluded  from the purview of the principle of\tlis  pendens
\nfor  the  improvement of which some loan  was  taken.\tThis
\nmeant  that  only  that part of the loan was  treated  as  a
\nliability  of the joint family as could be said to be  taken
\nfor the joint land.  It, therefore, modified the decrees  of
\nthe Courts below by giving a direction that further evidence
\nshould\tbe taken before passing a final decree to show\twhat
\nland could be thus excluded from partition.
\nThe plaintiff-appellant has relied upon certain\t authorities
\nlaying\tdown that the doctrine of lis pendens is not  to  be
\nextended to cover involuntary sales in execution of a decree
\nin  a  mortgage suit where the mortgage was,  prior  to\t the
\ninstitution of the suit in which
\n148<\/span>
\nthe plea of lis pendens is taken, because the rights of\t the
\npurchaser in execution of a mortgage decree date back to the
\nmortgage  itself.   They  are:\tChinnaswami  Paddayachi\t  v.
\nDarmalinga Paddyachi(1) Gulam Rasool Sahib v. Hamida  Bibi(2
\n)  , Baldeo Das Bajoria & Ors. v. Sarojini Dasi\t &  Ors.,(3)
\nHar  Prashad Lal v. Dalmardan Singh(4).\t Reliance  was\talso
\nplaced\ton the principle laid down in Sityam Lal &  Anr.  v.
\nSohan  Lal & Ors.,(5) to contend that, since Section  52  of
\nthe Transfer of Property Act does not protect transferors, a
\ntransfer on behalf of the whole joint Hindu family would  be
\noutside\t the purview of the principle in a  partition  suit.
\nThe  contention\t advanced  on  the  strength  of  the\tlast
\nmentioned  case erroneously assumes that the impugned  sales
\nwere on behalf of the joint family.\n<\/p>\n
Learned Counsel for the plaintiff-respondent has, in  reply,
\ndrawn  our  attention  to  the\tfollowing  observations\t  of
\nSulaiman,  Ag. C.J., expressing the majority opinion in\t Ram
\nSanehi Lal & Anr. v. Janki Prasad & Ors.(6) (FB) :\n<\/p>\n
\t      “.  . . . the language of S. 52 has been\theld
\n\t      to be applicable not only to private transfers
\n\t      but  also to Court sales held in execution  of
\n\t      decrees.\t S.  2\t(d)  does  not\tmake  S.  52
\n\t      inapplicable  to\tCh.  4,\t which\tdeals\twith
\n\t      mortgages.   This is now well-settled  :\tvide
\n\t      Radhama’dhub Holdar v. Manohar Mukerji (A) and
\n\t      Moti  Lal\t v.  Kharrabuldin  (B)\tfollowed  in
\n\t      numerous\tcases  out of which mention  may  be
\n\t      made of Sukhadeo Prasad
\n\t      V.    Jamna (C) “.\n<\/p><\/blockquote>\n
\t      (A)   (1888) 15 Cal. 756=15 I.A. 97
\n\t      (B)   (1898) 25 Cal. 179=24 I.A. 170.
\n\t      (C)   (1901) 23 All. 60=(1900) A.W.N. 199.\n<\/p><\/blockquote>\n
But,  as we have no actual sale in execution of\t a  mortgage
\ndecree,\t this  question need not be decided  here.   Another
\ndecision to which our attention was drawn was : Maulabax  v.
\nSardarmal &
\nAnr.  (7) .\n<\/p>\n
The suggestion made on behalf of the appellant, that attach-
\nment  of some schedule ‘B’ property before judgment  in\t the
\npurchaser’s mortgage suit could remove it from the ambit  of
\nlis pendens, is quit,-, unacceptable.  A contention of\tthis
\nkind was, repelled, in K. N. Lal v. Ganeshi Ram, (8) by this
\nCourt as clearly of no avail against the embargo imposed  by
\nSection 52 of the Transfer of Property Act.
\n(1)  AIR 1932 Madras 566.\n<\/p>\n
(3)  AIR 1929 Calcutta 697.\n<\/p>\n
(5)  AIR 1928 All. 3.\n<\/p>\n
(7)  AIR 1952 Nag. 341,
\n(2)  AIR 1950 Madras 189.\n<\/p>\n
(4)  ILR 32 Calcutta 891.\n<\/p>\n
(6)  AIR 1931 All.  P. 466 @ 480.\n<\/p>\n
(8)  [1970] 2 S.C.R. 204 at 21
\n149<\/span>
\nThe  High  Court had rightly distinguished  cases  cited  on
\nbehalf of the appellant before it by holding that  exemption
\nfrom the scope of As pendens cannot be extended to voluntary
\nsales in any case.  Obviously, its view was that, even where
\na  voluntary  sale  takes  place in  order  to\tsatisfy\t the
\ndecretal  amount  in a mortgage suit, the result of  such  a
\nsale was not the same as that of an involuntary sale in\t the
\ncourse\tof  execution  proceedings where  land\tis  sold  to
\nsatisfy\t the  decree  on the strength of  a  mortgage  which
\ncreates\t an  interest in the property mortgaged.   The\tHigh
\nCourt had observed that, as regards the satisfaction of\t the
\nmortgage  decree  in  his  favour, which  was  part  of\t the
\nconsideration  for  the\t sale  of  7-7-1958,  the  appellant
\npurchaser decree holder could get the benefit of Section  14
\nLimitation  Act and still execute his decree if it  remained
\nunsatisfied due to failure of consideration.
\nAn  examination of the sale deed of 7-7-1958 discloses\tthat
\nit  is\tnot  confined to the satisfaction  of  the  decretal
\namounts.   Other items are also found in it.  The sale\tdeed
\ndoes  not purport to be on behalf of the Hindu joint  family
\nof which Ayyaswami the plaintiff and Munisami Defendant\t No.
\n1  could  be said to be members.  It no doubt  mentions\t the
\nsons  of  Munisami Mudaliar but\t not  Ayyaswami,  plaintiff,
\namong  the sellers.  At most, it could be a sale binding  on
\nthe shares of the sellers.  As already indicated,  Munisami,
\nDefendant-Respondent,\tas   well  as\tJayaram\t  Defendant-
\nAppellant,  having  denied that the, properties\t in  dispute
\nwere  joint, could not take up the position that  the  sales
\nwere binding on the whole family.  Therefore, we are  unable
\nto  hold that the assumption of the Madras High\t Court\tthat
\nthe voluntary sale could not bind the whole family, of which
\nMunisami was the karta, was incorrect.\n<\/p>\n
Learned Counsel for the appellant had also relied on  Bishan
\nSingh  v. Khazan Singh.<\/a>(1) That was a case in which,  before
\nthe deposit of money by the pre-emptors in a suit to enforce
\ntheir rights to pre-emption, the vendee had sold his  rights
\nto the appellant who had an equal right of pre-emption.\t  It
\nwas  held  there  that the claim for  pre-emption  could  be
\ndefeated by such a device which fell outside the purview  of
\nthe  principle of lis pendens.\tWe think that this  decision
\nturns  Upon its own facts and on the nature of the right  of
\npre-emption which, as was observed there, is a weak  right.
\nThis  Court had held that this weak right could be  defeated
\nby  a  sale  which a vendee is compelled  to  make  for\t the
\npurpose\t of defeating the ‘night, provided  the\t purchaser’s
\nsuperior  or equal right to Pre-emption had not been  barred
\nby  limitation.\t On the question considered there. the\tview
\nof  the\t East Punjab High Court in Wazir Ali Khan  v.  Zahir
\nAhmad  Khan(2) was preferred ,to the view of  the  Allahabad
\nHigh Court in Kundan Lal v. Amar
\n(1) [1959] S.C.R. 878.\n<\/p>\n
(2)  A.T.R. 1949 East Punj. 193.\n<\/p>\n
150<\/span><\/p>\n
Singh.(1) The observations made by this Court with regard to
\nthe doctrine of lis pendens when a plaintiff is enforcing  a
\nright of preemption must, we think, be confined to cases  of
\nsales  which could defeat preemptors claims.  It has  to  be
\nremembered that a technical rule of the law of preemption is
\nthat the preemptor, to succeed in his suit, must continue to
\npossess the right to preempt until the decree for possession
\nis passed in his favour.\n<\/p>\n
As  regards the revenue sale of 16-3-1960 (Exhibit 0.51)  we
\nfind  that  the, sale certificate is even  less\t informative
\nthan\tthe   voluntary\t  sale\t deed\tconsidered    above.
\nNevertheless,  the view taken by: the Madras High Court\t was
\nthat  any land for to improvement of which loan is shown  to
\nhave been taken by Munisami Mudaliar would be excluded\tfrom
\nthe purview of the doctrine of lis pendens.  It is, however,
\nurged that the High Court had given effect to clause, (c) of
\nSection 7 of the Land improvement Loans Act of 1883, but had
\noverlooked clause (a). 1 Here, the relevant part of  Section
\n7,  sub-s.  (1) of this Apt may be, set out.   It  reads  as
\nfollows
\n\t      “7.  Recovery  of loans.-(1) Subject  to\tsuch
\n\t      rules  as\t may be made under Section  10,\t all
\n\t      loans granted under this Act, all interest (if
\n\t      any)  chargeable thereon, and ‘Costs (if\tany)
\n\t      incurred\tin making the same shall, when\tthey
\n\t      become  be’ recoverable by the,  Collector  in
\n\t      all or any of the following modes, name-\n<\/p>\n
\t      (a)   from   the\tborrower-as  if\t they\twere
\n\t      arrears of land revenue due by him;\n<\/p>\n
\t      (b)   from his surety (if any) as if they were
\n\t      arrears of land revenue due by him;,\n<\/p>\n
\t      (c)   out of the land for the benefit of which
\n\t      the  loan\t has been granted as  if  they\twere
\n\t      arrears of land revenue due in respect of that
\n\t      land;\n<\/p>\n
\t      (d)   out\t of  the property comprised  in\t the
\n\t      collateral security (if any)-according to\t the
\n\t      procedure for the realization of land  revenue
\n\t      by  the sale of immovable property other\tthan
\n\t      the land on which that revenue is due :\n<\/p>\n
\t      Provided that no proceeding in respect of\t any
\n\t      land   under  clause  (c)\t shall\taffect\t any
\n\t      interest in that land which existed before the
\n\t      date  of\tthe order granting the\tloan,  other
\n\t      than  the\t interest of the  borrower,  and  of
\n\t      mortgages\t of, or persons having\tcharges\t on,
\n\t      that interest
\n\t      (1)   A.I.R. 1927 All. 664.\n<\/p>\n
151<\/span><\/p>\n
and  where  the loan  is’ granted under Section 4  with\t the
\nconsent of another person, the interest of that person,\t and
\nof  mortgagees\tof,  or\t persons  having  charges  on,\tthat
\ninterest.”\n<\/p>\n
Reliance  was also placed on Sec. 42 of the Madras  Revenue-
\nRecovery Act of 1864 which reads as follows:\n<\/p>\n
\t      “All  lands  brought: to sale  on\t account  of
\n\t      arrears  of revenue shall be sold free of\t all
\n\t      incumbrances, and if any balance shall  remain
\n\t      after  liquidating the arrears  with  interest
\n\t      and  the expences of attachment and  sale\t and
\n\t      other costs due in respect to such arrears, it
\n\t      shall  be\t paid over to the  defaulter  unless
\n\t      such payment be’ prohibited by the  injunction
\n\t      of a Court of competent jurisdiction.”\n<\/p><\/blockquote>\n
It  will be seen that the assumption that the dues could  be
\nrealised as arrears of land revenue would only apply to\t the
\ninterest  of  the borrower so far as clause (7) (1)  (a)  ls
\nconcerned.  The proviso enacts that even recoveries  falling
\nunder  See.  7 ( 1 ) (c) do not affect prior  interests\t of,
\npersons\t other\tthan  the borrower or  of  the\tparty  which
\nconsents  to  certain  loans.  In the case  before  us,\t the
\nborrower  had  himself taken up the case that the  loan\t was
\ntaken  by him individually for the purpose of purchasing  a
\npumping\t set installed on the land.  It did not,  therefore,
\nfollow\tthat  this liability was incurred on behalf  of\t the
\njoint  family  unless it amounted to an unprovement  of\t the
\njoint land.  Every transaction of Munisami or in respect  of
\njoint property in his possession could not affect rights  of
\nother  members.\t It was for this reason that Section  7\t (1)\n<\/p>\n
(a)  was not specifically applied by the High Court,.\tBut,
\nat  the\t same time, the direction that the  properties\tsold
\nshould,\t so far as possible, be allotted to  Munisami  meant
\nthat the purchaser could enforce his rights to them if\tthey
\ncame to the share of Munisami.\n<\/p>\n
The question of paramount claims or rights of the Government
\nfor  the  realisation  of its taxes or\tof  dues  which\t are
\nequated\t with  taxes  was  also\t raised\t on  behalf  of\t the
\nappellant on the strength of Builders Supply Corporation  v.
\nThe  Union  of\tIndia(1) In that case,\tthe  origin  of\t the
\nparamount  right  of the State to realise taxes\t due,  which
\ncould  obtain priority over other claims, was traced to\t the
\nprerogatives  of the British crown in India.  Apart  of\t the
\nfact that there is no claim by, the State before us, we\t may
\nobserve that, where a statutory provision is relied upon for
\nrecovery of dues, the effect of it must be confined to\twhat
\nthe statute en-acts.  Even under the English law, the  terms
\nof  the statute displace any claim based on prerogatives  of
\nthe Crown
\n(1)  [1965] 2 S.C.R. 289.\n<\/p>\n
     152<\/span><\/p>\n
vide Attorney Generalv. De Keyser’s Royal hotel Ltd. (1)
\nAnd, in no case, can the,claim\t whatever  its\t basis,
\njustify. a sale of that property which doesnot\tbelong\tto
\nthe  person  against  whom  the\t claim\texists.\t As  already
\nobserved   a   claim  under  Section7(1)(a)  of\t  the\tLand
\nImprovement  Loans Act of 1883 could only be made  from\t the
\nborrower.   This  meat\tthat,  unless  it  was\tproved\tthat
\nMunisami, in taking a loan under the Act, was acting as the,
\nkarta of the, joint Hindu family of which Ayyaswamy was\t a
\nmember,\t recovery  of  arrears\tcould  only  be\t made\tfrom
\nMunisami’s share in the, 1and.\tThat this could be done was,
\nin our opinion implied in the direction that the  properties
\nsold should, so far as possible, be allotted to the share of
\nMunisami.\n<\/p>\n
As  some  argument  has been advanced on  the  supposed\t in-
\napplicability  of the general doctrine of lis pendem to\t the
\nimpugned  sales,  the nature, the basis, and the,  scope  of
\nthis doctrine may be ,considered here.\n<\/p>\n
It  has been pointed out, in Bennet “On lis pendens”,  that,
\neven before Sir Francis Bacon framed his ordinances in\t1816
\n“‘for the better and more regular administration of  justice
\nin the chancery, to be daily observed” stating the  doctrine
\nof  lis\t pendens in the 12th ordinance,\t the  doctrine\twas
\nalready\t recognized  and  enforced  by\tCommon\tlaw  Courts.
\nBacon’s ordinance on the ,Subject said :\n<\/p>\n
\t      “No  decree bindeth any that commeth  in\tbona
\n\t      fide, by conveyance from the, defendant before
\n\t      the  bill\t exhibited, and is  made  no  party,
\n\t      neither by bill, nor the order; but, where  he
\n\t      comes in pendente life, and, while the suit is
\n\t      in full prosecution. and without any colour of
\n\t      allowance\t or  privity  of  the  court,  there
\n\t      regularly\t the decree bindeth; but,  if  there
\n\t      were  any intermissions of suit, or the  court
\n\t      made acquainted with the conveyance, the court
\n\t      is  to  give  order upon\tthe  special  matter
\n\t      according to justice.”\n<\/p><\/blockquote>\n
The  doctrine,\thowever, as would be evident  from  Bennet’s
\nwork mentioned\tabove, is derived from the  rules  of  jus
\ngentium which became embodied in the Roman Law where we find
\nthe  maxim:  “Rem  dequa controversia  prohibemur  in  acrum
\ndedicate” (a thing concerning which there is a\tcontroversy
\nis prohibited, during the suit from being alienated).  Bell,
\nin his commentaries on the lows of Scotland(1) said that it
\nwas grounded on the,maxim: “Pendente lite nibil innovandum”.
\nHe observed
\n\t      “It is a general rule which seems to have been
\n\t      recognized   in\tall   regular\tsystems\t  of
\n\t      jurisprudence, that during the pendence of  an
\n\t      action., of which the object is to
\n\t      (1) [1920] AC 508.\n<\/p>\n
\t      (2) 2 Bell’s Com. on laws of Scotland, p. 144.\n<\/p>\n
\t      153<\/span><\/p>\n
\t      vest the property or obtain the possession  of
\n\t      real estate, a purchaser shall be held to take
\n\t      that estate as it stands in the person of\t the
\n\t      seller,  and to be bound by the  claims  which
\n\t      shall ultimately be pronounced.”\n<\/p>\n
In the Corpus Juris Secundum (Vol.  LIV-P. 570), we find the
\nfollowing definition :\n<\/p>\n
\t      “Lis  pendens literally means a pending  suit;
\n\t      and  the\tdoctrine  of lis  pendens  has\tbeen
\n\t      defined as the jurisdiction, power, or control
\n\t      which a court acquires over property  involved
\n\t      in  suit,\t pending  the  continuance  of\t the
\n\t      action, and until final judgment therein.”\n<\/p><\/blockquote>\n
Expositions  of the doctrine indicate that the need  for  it
\narises\tfrom the very nature of the jurisdiction  of  Courts
\nand  their control over the subject-matter of litigation  so
\nthat parties litigating before it may not remove any part of
\nthe  subject-matter outside the power of the court  to\tdeal
\nwith it and thus make the proceedings infructuous.
\nIt  is useful to remember this background of Section  52  of
\nour Transfer of Property Act which lays down :\n<\/p>\n
\t      “During the pendency in any Court…… of any
\n\t      suit or proceeding which is not collusive\t and
\n\t      in  which any right to immovable\tproperty  is
\n\t      directly\tand  specifically in  question,\t the
\n\t      property\tcannot be transferred  or  otherwise
\n\t      dealt  with  by  any  party  to  the  suit  or
\n\t      proceeding  so as to affect the rights of\t any
\n\t      other party thereto under any decree or  order
\n\t      which  may be made there,in, except under\t the
\n\t      authority of the Court and on such terms as it
\n\t      may impose.”\n<\/p><\/blockquote>\n
It  is evident that the doctrine, as stated in\tSection\t 52,
\napplies\t not merely to actual transfers of rights which\t are
\nsubject-matter\tof litigation but to other dealings with  it
\n“by any party to the suit or proceeding, so as to affect the
\nright of any other party thereto”.  Hence, it could be urged
\nthat  where  it\t is not a party to  the\t litigation  but  an
\noutside\t agency, such as the tax Collecting  authorities  of
\nthe  Government, which proceeds against the  subject–matter
\nof litigation, without anything done by a litigating  party,
\nthe  resulting\ttransaction will not be hit by\tSection\t 52.
\nAgain,\twhere all the parties which could be affected  by  a
\npending litigation are, themselves parties to a transfer  or
\ndealings with property in such a way that they cannot resile
\nfrom  or  disown the transaction impugned before  the  Court
\ndealing\t with  the litigation, the Court may  bind  them  to
\ntheir own acts.\t All these are matters which the Court could
\nhave properly considered.  The purpose of Section 52 of the
\nTransfer  of  Property\tAct is not to defeat  any  just\t and
\nequitable claim but only to subject them to the authority of
\nthe  Court  which  is dealing with the\tproperty  to,  which
\nclaims are put forward.\n<\/p>\n
11-1208S ipCT\/72
\n154<\/span>
\nIn  the case before US, the Courts had given  directions  to
\nsafeguard  such just and equitable claims as  the  purchaser
\nappellant  may\thave  obtained without\ttrespassing  on\t the
\nrights\tof  the plaintiff-respondent in the  joint  Property
\ninvolved in the partition suit before the Court.  Hence, the
\ndoctrine of lis pendens was correctly applied.
\nFor  the  reasons  given above, there is no  force  in\tthis
\nappeal which is dismissed with costs.\n<\/p>\n
Sikri, C. J.-I have had the advantage of perusing the  judg-
\nment prepared by my brother, Beg J., but as I arrive at\t the
\nsame conclusion by a slightly different route I am writing a
\nseparate  judgment.   I may give a few facts  to,  make\t the
\njudgment self sufficient.  The following pedigree may enable
\nus to appreciate the facts
\n\t  Muniappa Mudaliar
\nDoraiswamy Mudaliar ChidambaraGovindaswamy Muda-
\n(died on 4-9-1937)  Mudaliarliar (died 1940)\t wife
\n     6th Def. (died pendingAnnammal 10th Def.<\/p>\n
\n     suit)\nMuniswami\t    Ayyaswami Def. 7\tDef8 Def. 9\nMudaliar (1st Def.  Mudaliar\ndied pending suit)  (Plaintiff)\nDef. \/\t2\tDef.  3\t      Def.  4\t    Def. \/  5\n<\/pre>\n
12th  Def. (Jayaram Mudaliar)-alinee of Def.  No. 1.
\nOn  June  23,  1956 Ayyaswami  (Plaintiff)  filed  a  pauper
\npetition No. 137\/1958.\tIn the plaint he claimed a partition
\nof B Schedule properties which, according to him belonged to
\nJoint Hindu Family consisting of himself and the defendants.
\nWhile  this  suit  was pending,\t defendant  No.\t 1-Muniswami
\nMudaliar-and four of his sons executed a sale deed (Ex.\t B7)
\nin respect of some lands in Ozhaiyathur village in favour of
\nJayaram\t  Mudaliar  on\tJuly  7,  1958.\t  These\t  properties
\ncomprised  items  5, 15 to 19, 24 and 28 of Schedule  B.  On
\nJuly  15, 1960 a certificate of sale (Ex.  B51)\t was  issued
\nstating\t that  Jayaram\tMudaliar  had  purchased  at  public
\nauction\t immoveable property (described in the\tcertificate)
\nfor  Rs. 6,500\/-.  The property is stated to have been\tsold
\nfor  ”\tpumpset arrears under Hire Purchase  System  due  by
\nMuniswami Mudaliar”.  Exhibit B 51 covered items 4, 18,\t 20,
\n23 to 27 and
\n 155<\/span>\n<\/p>\n
31.It  is common ground that these properties were  included
\nin the B Schedule mentioned in the plaint.
\nIt is stated in the judgment of the Trial Court that Jayaram
\nMudaliar got himself impleaded as 12th defendant.  He  filed
\na  written statement inter alia alleging that the  Plaint  B
\nSchedule properties were the sole and absolute properties of
\nthe  1st  defendant.  Additional issues were framed  in\t the
\nsuit.\n<\/p>\n
It appears that by virtue of order dated September 18, 1961,
\nthe  plaint was amended and paras 24(a) and 24(b)  inserted.
\nThey read :\n<\/p>\n
\t      “24(a) The 12th defendant is a close agnate of
\n\t      the  son-in-law  of  the\t1st  defendant.\t  He
\n\t      executed the sham and nominal sale deed  dated
\n\t      7-7-1958\tin favour of the 12th  defendant  to
\n\t      defeat  the plaintiff’s rights and to  secrete
\n\t      the properties.  It was not acted upon.  It is
\n\t      the  1st\tdefendant that continues  to  be  in
\n\t      possession even now.  The alleged sale deed is
\n\t      not supported by consideration.  The  mortgage
\n\t      itself was brought about to defeat any rights.
\n\t      In  any event on the date of the alleged\tsale
\n\t      deed  dated 7-7-1958 the mortgage decree\tdebt
\n\t      was, not subsisting.  The plaint was filed  in
\n\t      forma pauperis as O.P. 137 of 1958 on the file
\n\t      of  this Hon’ble Court on 23-6-1958.  Thus  in
\n\t      any event the sale is, hit by the rule of\t lis
\n\t      pendens  and  the\t sale  deed  dated  7-7-1958
\n\t      cannot  and does not confer any rights on\t the
\n\t      12th defendant.\n<\/p><\/blockquote>\n
\t      24(b)  The  revenue  sale\t is  brought   about
\n\t      collusively  and fraudulently.  There  was  no
\n\t      publication.   The  12th defendant  never\t got
\n\t      into   possession\t  of  any   property.\t The
\n\t      possession still continues to be with the\t 1st
\n\t      defendant on behalf of the joint family.\t The
\n\t      sale  is also hit by the rule of lis  pendens.
\n\t      It also does not and cannot confer any  rights
\n\t      on the 12th defendant.”\n<\/p><\/blockquote>\n
Following additional issues were raised out of the pleadings
\nof the 12th defendant :\n<\/p>\n
\t      (1)   Whether the plaint B Schedule properties
\n\t      are joint family properties ?\n<\/p><\/blockquote>\n
\t      (2)   Whether  the  plaintiff is\tentitled  to
\n\t      question\tthe,  alienations in favour  of\t the
\n\t      12th defendant ?\n<\/p><\/blockquote>\n
\t      (3)   Whether the sale deed dated 7-7-1958  by
\n\t      the  1st\tdefendant  in  favour  of  the\t12th
\n\t      defendant\t true,\tvalid  and  binding  on\t the
\n\t      plaintiff and is affected by LIS PENDENS ?\n<\/p><\/blockquote>\n
\t      156<\/span><\/p>\n
\t      (4)   Whether   the   Revenue  sale   by\t the
\n\t      Collector\t dated\t16-3-1960 is  liable  to  be
\n\t      questioned by the plaintiff ?\n<\/p><\/blockquote>\n
\t      (5)   Is\tthe  suit  without  impleading\t the
\n\t      Government  liable  to be\t questioned  by\t the
\n\t      plaintiff ?\n<\/p><\/blockquote>\n
\t      (6)   Is\tthe  sale  of pump set\tby  the\t 1st
\n\t      defendant\t to the 12th defendant\ttrue,  valid
\n\t      and binding on the plaintiff ?\n<\/p><\/blockquote>\n
\t      (7)   Whether the plaintiff and other  members
\n\t      became  divided from the 1st  defendant  after
\n\t      1939 ?\n<\/p><\/blockquote>\n
\t      (8)   To\twhat equities, if any, is  the\t12th
\n\t      defendant\t entitled ?\n<\/p><\/blockquote>\n
\t      (9)   Is\t  the\tplaintiff   estopped\tfrom
\n\t      questioning  the alienations and claiming\t any
\n\t      right in the B Schedule properties ?
\n\t      We  are  only concerned with issues  3  and  4
\n\t      above.\n<\/p><\/blockquote>\n
The  Trial Court held that the sale deed, Ex.  B7,  and\t the
\nrevenue\t sale “are all true and supported  by  consideration
\nand  that the 12th defendant would be entitled to  them,  if
\nthese  sales were not affected by the rule of ‘lis  pendens’
\nwithin\tthe  meaning of s. 52 of the  Transfer\tof  Property
\nAct”.\tRegarding  lis pendens he held\tthat  the  purchases
\nunder both Ex.\tB7 and Ex. B51 were affected by the rule  of
\nlis  pendens.  The Trial Court passed a\t preliminary  decree
\nfor partition of B Schedule properties (items 2 to 31)\tinto
\nsix  equal  shares.  It protected the interest of  the\t12th
\ndefendant   by\tstating\t that  “as  far\t as   possible\t the
\nCommissioner  appointed\t in  the suit for  division  of\t the
\nproperties  will allot to the plaintiff’s share such of\t the
\nproperties which are not covered by Exs.  B 7 and B 51”.
\nThe  District Judge confirmed the decree.  Before  the\tHigh
\nCourt,\tin  appeal  by\tdefendant No.  12,  the\t only  point
\nconsidered  was\t that of lis pendens.  The High\t Court\theld
\nthat Ex.  B7 was a case of voluntary alienation and was\t hit
\nby  lis\t pendens,  as the sale was not\tin  execution  of  a
\nmortgage decree.  Regarding Ex.\t B51 the High Court, relying
\non Ponnuswami v. Obul Reddy(1) held that Ex.  B51 would\t not
\nbe affected by lis pendens, as the loans were granted  under
\nthe  Land Improvement Loam Act to the extent that the  loans
\nwere taken for the improvement of the properties.  As it had
\nnot  been considered whether all the properties\t which\twere
\nsold in revenue sale and conveyed under Ex.  B51 were, lands
\nfor  the  improvement of which loans were  taken,  the\tHigh
\nCourt directed
\n(1)  A.I.R. 1939 Mad. 256.\n<\/p>\n
157<\/span><\/p>\n
\t      “In  the final decree proceedings,  the  trial
\n\t      court   were   to\t consider  what\t  were\t the
\n\t      properties  for the improvement of  which\t the
\n\t      loans  under  the Land Improvement  Loans\t Act
\n\t      were taken by the first defendant, in  respect
\n\t      of those properties alone the doctrine of\t lis
\n\t      pendens  will not apply.\tIn respect of  other
\n\t      properties, the doctrine of lis, pendens\twill
\n\t      apply.  The trial court take evidence for\t the
\n\t      purpose of deciding the properties in  respect
\n\t      of which the loans under the Land\t Improvement
\n\t      Loans Act were taken.”\n<\/p><\/blockquote>\n
With this modification the High Court dismissed the appeal.
\nDefendant  No.\t12  applied  for a  certified  copy  of\t the
\nJudgment  and Decree on July 22, 1968, and these  were\tmade
\nready  on August 9, 1968 and delivered on August  12,  1968.
\nDefendant No. 12 moved the High Court by letter dated August
\n22,  1968  “requesting the posting of the appeal  for  being
\nmentioned  for the purpose of the issue of  the\t Certificate
\nfor  leave to appeal under the Letter Patent”.\tThe  learned
\nJudge  who heard the appeal by his order dated September  6,
\n1968 refused the leave on the ground that the leave was\t not
\nasked  for immediately on delivery of judgment and  that  it
\ncould not be asked for afterwards.\n<\/p>\n
Rule 28 of Order 4 of the Rules of the High Court of  Madras
\nAppellate  Side,  1965 under which the leave asked  for\t was
\nrefused reads
\n\t      “28.  When  an  appeal against  an  appellate,
\n\t      decree or order has been heard and disposed of
\n\t      by  a  single  judge, any\t application  for  a
\n\t      certificate  that\t the case is a fit  one\t for
\n\t      further appeal under clause 15 of the  Letters
\n\t      Patent  shall be made orally  and\t immediately
\n\t      after the judgment has been delivered.”\n<\/p>\n
This Court granted special leave.\n<\/p>\n
At  the outset, Mr. Chagla raised the preliminary  objection
\nthat  the appeal was incompetent as Defendant No. 12  failed
\nto  ask\t for certificate orally and  immediately  after\t the
\njudgment  was delivered.  The learned counsel for  Defendant
\nNo.  12 urged that Rule 28 of Order 4 was ultra vires.\t Two
\npoints thus arise out of the contentions of the parties :
\n(1)  Is Rule 28 of Order 4 of the Rules of the High Court of
\nMadras Appellate Side ultra vires ?\n<\/p>\n
(2)  Are  the Sales by Ex.  B7 and Ex.\tB51 hit by the\trule
\nof lis pendens ?\n<\/p>\n
Clause\t15 of the Letters Patent inter alia provides for  an
\nappeal\tto the High Court from a judgment of one judge\tmade
\nin
\n158<\/span>
\nexercise  of  the  appellate jurisdiction in  respect  of  a
\ndecree\t or  order  made  in  the  exercise   of   appellate
\njurisdiction  by  a court subject  to  its  superintendence,
\nwhere  the Judge who passed the judgment declares  that\t the
\ncase  is  a fit one for appeal.\t Clause 37 ,of\tthe  Letters
\nPatent\tconfers powers on the High Court to make  rules\t and
\norders\tfor  the purpose of regulating\tall  proceedings  in
\ncivil  cases.  This Court held in The Union of India v.\t Ram
\nKanwar<\/a>(1)  that under el. 27 of the Letters Patent which  is
\nin  similar terms as el. 37 mentioned above, the High  Court
\nof  Judicature\tat  Lahore  had the power  to  make  a\trule
\nprescribing  the period of limitation in respect of  appeals
\nfrom  Orders made by that Court in exercise of its  original
\njurisdiction  to a Division Bench ,of that Court.  It  seems
\nto  me\tthat  the  High\t Court\tcan  equally  frame  a\trule
\nregulating,  the ‘time at which and the manner in which\t the
\napplication  for  a certificate shall be made.\tRule  28  of
\nOrder 4 does not take away any right conferred by el. 15  of
\nthe  Letters  Patent.  It only regulates the manner  of\t the
\nexercise  of that right.  It was said that the\trule  unduly
\nrestricts  the right of the litigant to peruse the  judgment
\nand make, up his mind whether to appeal or not.\t But if\t the
\ndeclaration is made immediately by the Judge that the  case
\nis  fit\t one  for appeal there is  nothing  to\tprevent\t the
\nlitigant  ;from\t not filing the appeal if  he  considers  it
\ninadvisable to do so.\n<\/p>\n
I need not discuss the point whether the Judge will have the
\nright to condone a breach of the Rule because no application
\nseems  to have been made to condone the breach of the  Rule.
\nBut  this  conclusion does not render the appeal  before  us
\nincompetent.   Leave was given by this Court  after  hearing
\nthe respondents on October 14, 1968.  On April 22, 1969\t the
\nrespondents obtained an order from this Court for expediting
\nthe hearing.  No application was made at that stage to raise
\nthe point of. incompetency of appeal.  In the  circumstances
\nI consider that the appeal should be disposed of on merits.
\nComing\tto the second point, this Court has  considered\t the
\n7scope of s. 52 of the Transfer of Property Act and the rule
\nof lis pendens in a number of cases.  There is no difficulty
\nin holding that Ex.  B7 falls within the provisions of s. 52
\nof  the Transfer of Property Act.  But Ex.  B51 stands in  a
\ndifferent position.  It was held in Samarendra Nath Sinha  &
\nAnr.  v.  Krishna  Kumar Nag<\/a>(1) that the  principle  of\t lis
\npendens\t applies even to involuntary alienations like  court
\nsales.\tShelat J., observed :\n<\/p>\n
\t      “The   purchaser\tpendente  lite\tunder\tthis
\n\t      doctrine\tis  bound  by  the  result  of\t the
\n\t      litigation  on  the principle that  since\t the
\n\t      result  must bind the party to, it so must  it
\n\t      bind the person deriving his right, title\t and
\n\t      interest from or
\n\t      (1) [1962]3 S.C.R. 313.\n<\/p><\/blockquote>\n
\t      (2) [1967] 2S.C.R. 18,28.<\/p><\/blockquote>\n
\t      159<\/span><\/p>\n
\t      through\thim.\tThis   principle   is\twell
\n\t      illustrated    in\t  Radhamabhub\tHolder\t  v.
\n\t      Monohar(1) where the facts were almost similar
\n\t      to those in the instant case.  It is true that
\n\t      S.  52  strictly speaking does  not  apply  to
\n\t      involuntary  alienations such as court  sales.
\n\t      But it is well-established that the  principle
\n\t      of  lis- pendens applies to such\talienations.<\/p><\/blockquote>\n
\t      [See Nilkant v. Suresh Chandra(2) and  Motilal
\n\t      v. Karrabuldin (3).]
\nThese  observations were referred to with approval  by\tthis
\nCourt  in Kedar Nath Lal v. Ganesh Ram<\/a>(1). If the  principle
\nof lis pendens applies to court auctions there is no  reason
\nwhy it should not apply to revenue sales.  But the effect of
\nthe application of the principle’ may vary according to\t the
\nnature\tof  the provisions under which the revenue  sale  is
\nheld.\tThe  principle of lis pendens does not\taffect\tpre-
\nexisting rights.  If there is a valid charge or mortgage  on
\na  property,  this  does not  vanish  because  the  property
\nbecomes\t the  subject-matter of a partition suit.   In\tthis
\ncase according to defendant No. 12 a valid charge  subsisted
\non  the\t lands\tby  virtue of the  provisions  of  the\tLand
\nImprovement  Loans Act.\t Under s. 7 of the Land\t Improvement
\nLoans  Act loans are recoverable by the Collector in all  or
\nany of the following modes, namely:\n<\/p>\n
\t      (a)   from  the  borrower\t as  if\t they\twere
\n\t      arrears of land revenue due by him;\n<\/p><\/blockquote>\n
\t      (b)…………\n<\/p><\/blockquote>\n
\t      (c)   out of the land for the benefit of which
\n\t      the  loan\t has been granted as  if  they\twere
\n\t      arrears of land revenue due in respect of that
\n\t      land;\n<\/p><\/blockquote>\n
\t      The proviso to s. 7 reads
\n\t      “Provided that no proceeding in respect of any
\n\t      land   under  clause  (c)\t shall\taffect\t any
\n\t      interest\tin that land which  existed  before
\n\t      the date of the order granting the loan, other
\n\t      than  the\t interest of the  borrower,  and  of
\n\t      mortgagees  of, or persons having charges\t on,
\n\t      that  interest, and where the loan is  granted
\n\t      under  Section 4 with the consent\t of  another
\n\t      persons,\tthe interest of that person, and  of
\n\t      mortgagees  of, or persons having charges\t on,
\n\t      that interest.”\n<\/p><\/blockquote>\n
Section 42 of the Madras Revenue Recovery Act provides\tthat
\nall  lands brought to sale on account of arrears of  revenue
\nshall  be sold free of all encumbrances.  The  liability  of
\nthe land to be sold
\n(1)15 I.A. 97. (2) 12 I. A. 171. (3) 24 I.A. 170. (4) [1970]
\n2 S.C.R. 204.\n<\/p>\n
160<\/span><\/p>\n
under s. 7 (c) of the Act was a pre-existing charge and that
\nsubsisted  as  from  the date of the  loan.   This  was\t not
\naffected by the institution of the suit for partition.\tThis
\ncharge\tcould be enforced by the State, notwithstanding\t the
\npendency of the partition suit.\t No decree in the  Partition
\nsuit could have effaced the charge.  Therefore, if the State
\nhas  sold  only the property in respect of  which  loan\t was
\ntaken,\tthe purchaser-defendant No. 12-is not prejudiced  by
\nthe, principle of lis pendens.\tTherefore, the direction  of
\nthe  High Court was right insofar as it directed  the  Trial
\nCourt  to  separate the properties for\tthe  improvement  of
\nwhich  the loans under the Land Improvement Loans  Act\twere
\ntaken, from the other properties.\n<\/p>\n
In the result the appeal fails and is dismissed.\n<\/p>\n
G C.\t\t   Appeal dismissed.\n161<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jayaram Mudaliar vs Iyyaswaar & Ors on 12 April, 1972 Equivalent citations: 1973 AIR 569, 1973 SCR (1) 139 Author: S Sikri Bench: Sikri, S.M. (Cj) PETITIONER: JAYARAM MUDALIAR Vs. RESPONDENT: IYYASWAAR & ORS. DATE OF JUDGMENT12\/04\/1972 BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) RAY, A.N. BEG, M. HAMEEDULLAH CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-164421","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJayaram Mudaliar vs Iyyaswaar & Ors on 12 April, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayaram-mudaliar-vs-iyyaswaar-ors-on-12-april-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayaram Mudaliar vs Iyyaswaar & Ors on 12 April, 1972 - 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