NALLAKUMARA GOUNDAN Vs. PAPPAYI AMMAL AND ANR.
HIGH COURT OF MADRAS
Pappayi Ammal And Anr.
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Somayya, J. -
(1.) THE second defendant in a suit for maintenance brought by the plaintiff first respondent is the appellant in this Court. The first respondent is the widow of one Chinnappa Goundan. Chinnappa Goundan and Muthuswami were brothers. They became divided under a partition deed Ex. D in the year 1919. At that time, their mother and grandmother and an aunt of theirs were alive. The properties now in suit and a house were set apart for the maintenance of the three ladies to be enjoyed by them for their life. Chinnappa, the plaintiff's husband, executed a will in favour of his brother Muthuswami. He directed the legatee to pay Rs. 17 to 20 per month to his wife the plaintiff for her maintenance. The will declared that if the legatee failed to pay the maintenance to his wife, she would have a right to recover it from the propsrties of Chinnappa Goundan which remained in the hands of the first defendant's father after paying his debts. It also provided that the land that was set apart at the time of the partition for the maintenance of his mother and aunt should go to the legatee after their life. The plaintiff filed a suit in forma pauperis on the 10th March, 1932, for maintenance against the first defendant's father Muthuswami claiming a charge over six items of properties. These items did not include the three items which had been set apart for the maintenance of the three ladies and which form the subject -matter of the present suit. By a subsequent amendment, the widow was allowed to include the three items now in question and to claim a charge over these items as well. The application for amendment I.A. No. 386 of 1932 to include the additional items was filed on the 22nd April, 1932, and it was ordered on the 13th August, 1932. Muthuswami died in the beginning of May, 1932, and I.A. No. 421 of 1932 was filed on the 11th July, 1932, to implead his son as his legal representative and it was ordered on the 6th August, 1932. After the death of Muthuswami and before the application for adding his son as the legal representative, his son, the present first defendant, sold the three additional items and some other properties to the second defendant for Rs. 4,750 by a sale deed dated the 9th June, 1932. Ultimately the suit ended in a decree by which maintenance was decreed and made a charge on the items purchased by the second defendant. When the plaintiff attempted to execute her decree, she was met with opposition and her execution petition was dismissed. Then she filed the suit out of which this second appeal arises for a declaration that she has a right to execute the decree and to recover her decree amount from out of the suit properties. The suit was at first dismissed by the District Judge on appeal on the ground that the maintenance decree was a charge decree, that no claim petition lay in execution of such a decree as there was no attachment and that the order refusing execution against the properties could not be challenged by a suit under Order 21, Rule 63. The trial Court had upheld the plaintiff's right to execute the decree against the properties but on appeal the decree was reversed and the suit dismissed on the ground mentioned above. The matter came before me in S.A. Nos. 124, 180 and 518 of 1941. I held that the suit might be treated as one for a declaration of the plaintiff's right to sell the properties in the hands of the second defendant in execution of her prior decree. The plaintiff had preferred one second appeal and the first and second defendants had each preferred a second appeal. All of them attacked the judgment of the District Court and all the appeals were allowed and the appeal was remanded for disposal on the question whether the plaintiff had a right to proceed against the suit properties in realisation of the amount due to her under the prior decree. This time it came before another District Judge and he upheld the right of the plaintiff to realise her decree amount from the half share of Chinnappa Goundan in the three items. This second appeal is preferred by the second defendant who is the purchaser at a private sale from the first defendant on the 9th June, 1932.
(2.) THE view taken by the lower appellate Court is that the purchase by the second defendant is affected by the doctrine of Us pendens and is therefore subject to the rights which were declared under the decree in that suit. It is argued that this view is incorrect for two reasons : one is that the vendor the first defendant was not a party to the suit on the 9th June, 1932, when the sale was made by him. It is only a sale by a party to a suit that is affected by the doctrine of lis pendens enacted in Section 52 of the Transfer of Property Act. The second ground is that the three properties now in suit had not become the subject -matter of the previous suit until the amendment was actually ordered which was on the 13th August, 1932. Taking the latter point first, it is clear that the amendment application was filed on the 22nd April, 1932. The order made on the 13th August, 1932, will date back to the date of the application for amendment. No authority has been cited to show that where an application for amendment seeking to include some more properties is later on ordered, it is the date of the order that determines the question of lis pendens. This question as to what date an amendment order dates back, whether it is to the date of the application for amendment or to the date of suit has been considered and it has been held that it relates back to the date of the amendment application, if not to the date of the suit itself. So far as the doctrine of lis pendens is concerned, the proper view is that the order dates back to the date of the application for amendment. It is then that further Immovable properties were sought to be impleaded in the suit. An alienation made prior to the application will not be affected, but from the date when the application for amendment was made, it must be held that the question of lis pendens applies. The delay caused by the Court in ordering the application ought not to prejudice the parties. An application for amendment is similar to the plaint. It is said that the defendants did not know -that these properties were included until the amendment was ordered. But it would be seen that where in a plaint a right to immovable property is claimed, the defendant may not know of the institution of the suit until summonses are served on him and still the doctrine of lis pendens has been held to be applicable to an alienation made between the date of the suit and the date of the service of summons. This rule is based upon public policy that if an alienation subsequent to the date of the plaint is allowed, the plaintiff will have to bring the alienee on record every time such an alienation is made and there will be no end to litigation. It is in order to avoid that trouble the Legislature has enacted Section 52 of the Transfer of Property Act and the matter is made clear that the doctrine of lis pendens applies to all alienations made from the date of the plaint itself. The explanation added to the section by the amending Act of 1939 says:
For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction.
(3.) THE next question is whether the sale was by a party to the suit. Section 52 in so far as it is relevant for this purpose says this:
During the pendency in any Court . of any suit or proceeding in which any right to Immovable 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;
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