- (1.) Bidhusekhar Banerjee had a wife of the name of Digambari Debi. Five sons were bora to them, viz., Gobardhan (deft, 1), Anath, Ajit, Asit & Anil. Digambari died some-time in 1912 but Bidhusekhar died about nine years thereafter. At the time of Digambari's death all the five sons were living but at the time of Bidhusekhar's death Anath was dead but the other four sons survived him. We are stating those facts because one of the points raised in this case is whether the properties in suit belonged to Bidhusekhar or to his wife Digambari. In the view that we are taking it is not necessary to decide this point. Anath died in the year 1917 leaving him surviving a widow, viz., Lilabati. It is admitted that Anath had two sons, Mohitkumar & Monmohan but it is a point in controversy in this case as to whether Mohitkumar predeceased his father or survived him. Ajit is dead; he died after Bidhusekhar. His family consists of at the present time, his widow, Bijan Bashini & three sons Rashamoy Gunamoy & Sukhomoy. Sukhomoy & his mother Bijan Bashini are the pltfs. in suit. The other two sons of Ajit, viz., Rashamoy & Gunamoy have sold whatever interest they had in the properties in suit to another person of the, name of DaSarathi Mukherjee who is deft. 4 in the suit. Asit is now dead & his son Sibanath is deft. 3 in the suit. Anil who is alive is deft. 2 in the suit. In 1921 Gobardhan, Ajit, Asit & Anil mortgaged the four-fifths share in the properties in suit to Joy Chand Lal Babu & his co-sharers. Whether the properties belonged to Bidhusekhar or to his wife Digambari would not affect this share as in any event they would have four-fifths share. The share of the descendants of Anath would not also be affected; that branch would have the remaining fifth share whether the properties belonged to Digambari or to her husband Bidhusekhar. Joy Chand Lal Babu & his co-sharers instituted a suit to enforce his mtge. on 24-5-1927. A preliminary decree for sale was passed in that mtge. suit on 6-8-1927, & the final decree for sale was passed on 9-2-1928. In execution of the final decree for sale, the decree-holders themselves viz., Joy Chand Lal Babu & his co-sharers, purchased the properties mortgaged, which are the properties in suit, on 10-6-1929. That sale was confirmed on 7-1-1931. In the meantime an unsecured creditor of Ajit & Anil had obtained a decree for money against them. That decree was put into execution by that creditor & at the Ct's. sale held on 9-12-1928, one Bam Brahmo purchased the right, title & interest of Ajit & Anil. The sale at which Ram Brahmo purchased was confirmed on 4-1-1931. From the dates that we have mentioned above relating to the mtge. suit which had been instituted by Joy Chand Lal Babu & his co-sharers it will appear that Bam Brahmo purchased the right, title & interest of Ajit & Anil during the pendency of the mtge. suit. To be more exact, the sale at which Bam Brahmo purchased was held & confirmed between the preliminary & final decrees of the mtge. suit. The share belonging to the branch of Anath was not mortgaged to Joy Chand Lal Babu & his co-sharers. They, however, purchased that, share, which was the remaining one-fifth share in the properties from Monmohan, the son of Anath, who had admittedly survived Anath, by private treaty on 10-8-1932. As a result of the mtge. sale & of this purchase by private treaty, Joy Chand Lal Babu & his co-sharers became the 16 annas owners of the properties in suit. But other complications ensued thereafter. In 1940 two applns. were made against Joy Chand Lal Babu & his co-sharers Under Section 36, Bengal Money-Lenders Act. One appln. was made by the mtgor. Gobardhan, Anil & Sibanath & the other appln. was made by the three sons of Ajit, viz., Gunamoy, Sukhomoy, Rashamay & by Ajit's widow Biraj Bashini. Those applns. were heard together. They were not, however, disposed of on adjudication, because the mtgees decree-holders-auction-purchasers, Joy Chand Lal Babu & his co-sharers & the mtgors. put in a consent petn. & a consent order was passed. We shall have to notice in some detail one of the terms of the compromise petn. namely, the term which is embodied in para. 1 (ka) of the joint petn. of compromise on the basis of which the consent order was passed on the applns. Under Section 86, Bengal Money Lenders Act. We, would, however, only state whau in substance is the effect of that compromise. Five items of property which had been included in the mtge. had been purchased by the mtgees -decree-holders themselves Joy Chand Lal Babu & his co-sharers in execution of the final decree. The mtgees-auction purchasers gave up items 1 & 2 but they retained the other three items viz., items 3, 4 & 5 & the mtge. decree was taken to be satisfied. Items l & 2 are dealt with in Clause 1 (ka) of the petn. of compromise & these are the two items which are the subject-matter of the suit out of which this appeal arises. By that compromise Joy Chand Lal Babu & his co-sharers also agreed to convey to the mtgors, Gobardhan, Gunamoy, Sukhamoy, Rasamoy, Bijan Bashini, Shib Nath & Anil, the share which they had purchased by a private treaty from Monmohan on 10-8-1932. In pursuance of that agreement Joy Chand Lal Babu & his co-sharers later on executed the promised conveyance The date of compromise is 30-8-1911, & the date of conveyance is 23-12-1941. On 6-7-1942, Bijan Bashini Debi, the widow of Ajit, & Sukhamoy, one of the three sons of Ajit instituted this suit for partition. In the suit the defts. were the persons whom we have named above. Lilabati, the widow of Anath, & Rarn Brahmo were not, however, made parties to the suit. Gobardhan (deft, l) alone appeared in this case & contested the same. We are not concerned in this appeal with all the defences that he took in his written statement. We are concerned with only one defence taken, viz., whether the suit could go on in the absence of Lilabati, the widow of Anath & of Ram Brabmo, that is to say, whether Lilabati & Ram Brahmo are necessary parties in this suit for partition. If they are necessary parties, this suit will have to be dismissed; if they are not, this suit would go on but the only effect would be that the decree in the suit would not be binding on Lilabati or Ram Brahmo, because they are not parties to the suit.
(2.) The learned Subordinate Judge overruled the defence. He came to the conclusion that Mohitkumar, the eldest son of Anath had predeceased his father. Apparently he accepted the evidence which had been led by the pltfs. that Mohitkumar had died about a year before his father's death, which admittedly occurred in 1917. A piece of documentary evidence was put in by the deft, to show that Mohitkumar survived his father. The document is a plaint of a rent suit in respect of the property situated in the Dist. of Midnapore. In the cause title the pltfs. were Gobardhan, Ajit, Asit, Anil & Mohit Kumar & Monmohan represented by the next friend mother Lilabati. This suit was filed in 1917 & the cause title proceeds in this way : 'On the death of Anathnath Banerjee his minor sons Mohit Kumar & Monmohan Banerjee represented by their mother Lilabati Devi." The learned Subordinate Judge explained away this document by saying that the Gomastha who was in charge of the case must have committed a mistake If we were to proceed on the evidence which has been adduced in this case both oral & documentary it would have been a matter for serious consideration, whether in the absence of any evidence that the Gomoatha who was in charge of that suit had committed a mistake the statement in that plaint could be brushed aside. It would have been also a material question as to whether the properties in suit belonged to Digambari Debi or to Bidhusekhar. If it had belonged to Bibhusekhar the question whether Mohit Kumar died shortly before or after the death of his father Anath would not have been material at all for, in that case succession would not open till Bidhusekhar's death which occurred in 1921. At that time Anath was dead but the grandsons of Bidhusekhar who were the sons of Anath & who were alive at his death would take a share of his property in their independent right & admittedly at the death of Bidhusekhar Monmohan was the only surviving son of Anath. If however, the property belonged to Digambari, the question whether Anath was survived by one son viz., Monmohan or by both his sons Mohit & Monmohan would have been a very pertinent question as in that case succession would open while Anath was alive. However, we are relieved of deciding on the evidence the point which we have just indicated for the purpose of considering whether Lilabati was a necessary party to this suit for partition, as we are of opinion that the question is concluded by res judicata as between the defts. in this suit including Gobardhan & the pltfs. The question of res judicata arises in the following manner : In the year 1989 when Monmohan was a minor ; his mother Lilabati as his next friend instituted a suit for partition which included the properties in suit now against Gobardhan, Ajit, Asit & Anil Banerjee, the other four sons of Bidhusekhar. The plaint of the suit has been marked Ex. 11 in this case. In para. l of the plaint, the pltf. of that suit stated that Bidhusekhar the paternal grand-fat her of the pltf., died leaving four sons viz., the four defts. to the suit & another son Anath, the father of the pltf., that Anath died on the 15th of Sravan 1324 B. S.--31-7-1917, during the life time of his father leaving the pltf. as his heir. The learned Judge simply notices in his judgment this plaint & uses his para. of the plaint in support of his finding that Mohit, the other son of Anath had predeceased the latter. The learned Judge, however, did not notice the fact that the suit so instituted terminated in a decree. The decree is an ex parte decree & is Ex. 9 in the case. On the basis of the said statement, the pltf. Monmohan claimed the share of his father, viz., one-fifth. If Mohit had survived Anath then Monmohan could only claim one-tenth share in the property, viz., a moiety share of what would have belonged to his father, Anath & the other moiety share would have devolved upon Mohit & Lilabati would have got his share on the death of Mohit as heir of her son. That being the position, we hold that the question as to whether Anath died leaving him surviving only one son Monmohan or two sons Monmohan & Mohitkumar was a direct & substantial question in issue in the case & must be taken to have been decided in favour of the pltf. in that suit viz., Monmohan. On this ground & this ground alone we hold that the defence of Gobardhan that Lilabati is a necessary party to the suit that we have before us cannot be given effect to.
(3.) We will now deal with the question as to whether Ram Brahmo is a necessary party to the suit out of which this appeal arises. We have already pointed out that he purchased the right, title & interest of Ajit & Anil during the pendency of the mtge. suit instituted by Joy Chand Lal Babu & his co-sharers. Anil & Ajit were two of the mtgors. & they were parties to the suit. If the proceeding under the Bengal Money-Lenders Act had not resulted in the compromise or if as a result of that compromise the mtgee- decree- holders purchasers had conveyed to the defbs. in that suit what they had purchased at the court-sale held in execution of their mtge. decree, Earn Brahmo would have been concluded by the rule of lis pendens. If, however, the mtge. sale in respect of the properties in suit which were items (1) & (2) in the sale certificate given to the mtgee-decree-holders purchasers, Joy Chand Lal Babu & his co-sharers, was set aside as a result of that compromise & the mtge. decree was fully satisfied, the doctrine of lis pendens would not in our opinion apply. The doctrine of lis pendens although it is contained in Section 62, T. P. Act, a statute which deals with "voluntary transfers" would apply to execution sales also. This has been settled by three decisions of the Judicial Committee viz., Nilakant Banerji v. Suresh Chandra Mullick, 12 I. A. 171 : (12 Cal. 414 P.C.) Radha Madhub Haldar v. Monohar Mukerji, 15 I. A. 97 : (15 Cal. 756 P.C.) and Moti Lal v. Karrab-ulDin, 24 I. A. 170 : (25 Cal. 179 P. C.). Though Earn Brahmo is not a purchaser by private treaty but is a purchaser at a Ct. sale, the validity of this purchase must therefore in effect be judged by the terms of Section 52, T. P. Act which embodies the general law of lis pendens. The material portion of the Section runs thus: "... the property cannot, therefore, 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." That is to say, a transfer pendente lite is not absolutely prohibited, i.e., a transfer pendente lite is not void or illegal, only the title acquired by such a transfer would be inferior to the title acquired under the decree or order which is eventually passed in the suit during the pendency of which the transfer is made by a party--to that suit. Applying the language of this part of the section which we have quoted above to the facts of this case, Ram Brahmo's title would have been swept away by the title which the auction purchasers had got by the sale in execution of the-mtge. decree passed in the suit instituted by Joy Chand Lal Babu & his co-sharers to enforce the mtge. executed amongst others by Ajit & Anil--persons whose right, title & interest Ram Brahmo had purchased at a court sale during the pendency of that suit. That is to say, the title of Joy Chand Lal Babu & his co-sharers qua purchasers at the-mtge. sale would have prevailed over the title-acquired by Ram Brahmo. Ram Brahmo could; not have set up his title against Joy Chand Lal Babu & his co-sharera qua auction purchasers or any person claiming title through Joy Chand Lal Babu & his co-sharers by purchase, inheritance etc. That being the position in law it is necessary to see whether the other parties to the compromise, namely, Gobardhan, the heirs of Ajit, namely, Gunamoy, Sukhomoy & Rasamoy & Bijan Bashini; Sibnath, the heir of Asitnath & Anil can be regarded as assignees of Joy Chand Lal Babut & his co-sharers, qua auction purchasers. This question would depend mainly upon Clause 1 (ka) of the terms of compromise arrived at between the last mentioned persons & Joy Chand Lal Babu & his co-sharers in the Money-lenders Act proceedings. Clause 1 (ka) runs as follows : "Out of the mortgaged properties property of item 1 is the ancestral residential house of the petnrs. & the property of item 2 is the patit homestead laud adjoining the property of item 1. The mtge, decree obtained by the opposite parties in respect of items 1 & 2 of the mortgaged properties & the interest they had acquired on the basis of the execution of the mtge decree are cancelled & set aside, & the sixteen annas interest acquired by the opposite parties, in the said items 1 & 2 of properties by virtue of purchase at auction & under deed of voluntary sale comes to be extinct & the same vests in the petnrs. in the present case & also in Misc. Case No. 48 of 1941 of this Ct. & the sixteen annas interest in items 1 & 2 of the mortgaged properties comes to revive in favour of the petnrs. in the aforesaid two suits & they become owners & possessors of the aforesaid items 1 & 2 of properties. The opposite parties will not be entitled to lay any further claim or demand in respect of the same in future." The first part of Clause l (kha) states that the title acquired by the mtgee. auction purchasers, Joy-chand Lall Babu & his co-sharera in items 3, 4 & 5 (properties which are not in suit) shall remain in force & intact. That clause then winds up with the following words: "The entire claim of the opposite parties under the decree in Mtge. Suit No. 29 of 1927--together with costs is deemed to be satisfied out of the properties in the aforesaid items 3, 4 & 5." Reading these clauses together, the effect is that the title acquired by the mtgees. by their purchase at the auction sale in items 1 & 2 was extinguished. Those items of property are taken out of the mtge. security & the court, sale in respect thereto was set aside, with the result that the mtgors. retained the title which they originally had & the mtge. decree was fully satisfied by the mtgees. retaining as owners the other three items included in the mtge., namely, items 3, 4 & 5. In this view of the matter, Gobardhan & the other persons we have mentioned above cannot, in our opinion, be considered as assignees of the mtgee. decree-holders purchasers. The doctrine of lis pendens cannot therefore be invoked by the pltfs. in the partition suit, which we have before us, for the purposes of defeating the title which Ram-brahmo had acquired by reason of his purchase at the court-sale held in execution of a money decree that had been passed against Ajit & Anil. The first ground on which the learned Subordinate Judge based his decision cannot, therefore, be supported.;