CIVIL APPELLATE JURISDICTION Civil Appeal No 2152 of 1968
Appeal by special leave from the _judgment and decree dated July 19 1968 of the Madras High Court in Second Appeal No 1173 of 1964
M C Chagla R Gapalakrishnan and T L Garg for the appellant
M K Ramamurthi Ramamurthy and Vineet Kumar for res pondents Nos 1 and 6 to 9
The Judgment of A N RAY and M H BEG was delivered by BEG J SIKRI CJ gave a separate Opinion
Beg J Jayaram Mudaliar the Appellant before us by Special Leave purchased some lease hold land for Rs 10500 from Munisami Mudaliar and others under a sale deed of 7 7 1958 Exhibit B 7 and some other lands shown in a sales certificate dated 15 7 1960 Exhibit B 51 sold to him for Rs 6550 at a public auction of immovable property held to realise the dues in respect of loans taken by Munisami Mudaliar under the Land Improvement Loans  Act 19 of 1883
Both Jayaram and Munisami mentioned above were impleaded as co defendants in a 142 Partition suit in Vellore Madras now before us in appeal commenced by a pauper application dated 23 6 1958 filed by the plaintiff respondent Ayyaswami Mudaliar so that the suit must be deemed to have been filed on that date
The plaintiff respondent before us had challenged by an amendment of his plaint on 18 9 1961 the validity of the sales of land mentioned above consisting of items given in schedule B  to the plaint on the ground inter alia that these sales of joint property in suit were struck by the doctrine of lis pendens embodied in section 52 of the Indian Transfer of Property Act
As this is the sole question on merits raised by the appellant before us for consideration we will only mention those facts which are relevant for its decision
Before however dealing with the above mentioned question a preliminary objection to the hearing of this appeal may be disposed of
The Trial Court and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above the appellant purchaser had filed a second appeal in the High Court of Madras which was substantially dismissed by a learned Judge of that Court on 19 7 1968 after a modification of the decree
Leave to file a Letters Patent appeal was not asked for in the manner required by Rule 28 Order IV of the Rules of Madras High Court which runs as follows 28When an appeal against an appellate decree or order has been heard and disposed of by a single Judge any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered
 But the appellant after obtaining certified copies of the judgment and decree of the High Court sent a letter to the Registry that the case be listed again for obtaining a certificate of fitness to file a Letters  Patent appeal
The case was therefore listed before the learned Judge and an oral application which was then made for grant of a certificate was rejected on 6 9 1968 on the ground that it had not been made at the proper time
It was contended on behalf of the respondent that in the circumstances stated above the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did not ask for leave to file a Letters  Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court that is to say immediately after the judgment has been delivered
The following observations of this Court in Penu Balakrishna Iyer  Orsvs Sri Ariva M Ramaswami lyer  Ors1 were cited to contend that the appeal before us should be rejected in limine  1   52 53 143 lm15 Normally an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been availd of
In fact no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that article 1333 expressly provides that normally an appeal will not lie to this Court from the judgment decree or final order of one Judge of the High Court
It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant
But even in such cases it is necessary that the remedy by way of a Letters  Patent Appeal must resorted to before a party comes to this Court
In reply to the preliminary objection Mr Chagla appearing for appellant has assailed the validity of the above mentioned Rule 28 of Order IV itself
It is submitted that the rule conflicts with the provisions of clause 15 of the Letters  Patent of the Madras High Court requiring only that the Judge who passed the Judgment should declare that the case is fit one for appeal as a condition for appealing
It was urged that the period of limitation for filing an appeal should not in effect be cut down by a rule such as the one found in Rule 28 Order IV of the Rules of Madras High Court
It was urged that before article 117 of the of 1963 introduced a period of thirty days from a decree or order for filing a Letters Patent appeal the period of limitation for such appeals fell under the residuary article 181 of the old 
As applications for certification fen outside the provisions of the Civil Procedure Code and there was no specific provision for them in the the High Court could frame its own rule prescribing the mode and time for making such applications
Rule 28 of Order IV of the Madras High Court does not purport to affect the power to give the declaration contemplated by clause 15 of the Letters  Patent
In some High Courts there is no rule of the Court laying down that the application should be oral and made immediately after the judgment has been delivered
It is however evident that a rule such as Rule 28 of Order IV the Madras High Court is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed in 1963
The Judge pronouncing the judgment can decide then and there in the presence of parties or their counsel whether the case calls for a certificate
In a suitable case where a party is able to prove that it was prevented due to some cause beyond its control from asking for leave at the proper time the Judge concerned may condone non compliance 144 by a party with Rule 28 Order IV of the Madras High Court or extend time by applying Section 5 of the 
This salutary rule could not therefore be held to be ultra vires or invalid
There is however another answer to the preliminary objec tion
It was contended that the case before us is covered by what was laid down by this Court in Penu Balakrishna Iyer s case Supra when it said at page 53  we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked
Having regard to the wide scope of the powers conferred on this Court under article 136 it is not possible and indeed it would not be expedient to lay down any general rule which would govern all cases
The question as to whether the jurisdiction of this Court under article 136 should be exercised or not and if yes on what terms and conditions is a matter which this Court has to decide on the facts of each case
In that particular case this Court had actually heard and allowed the appeal by Special leave because it held that there was no general inflexible rule that special leave should be refused where the appellant has not exhausted his rights by asking for a certificate of fitness of a case and because that case called for interference
It is urged before us that the appellant had done whatever he possibly could in the circumstances of the case to apply for and obtain a certificate of fitness after going through the judgment of the High Court so that the rule that alternative modes of redress should be exhausted before coming to this Court had been really complied with case must we think be decided upon its own facts
In the case before us although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time yet he special leave petition having been granted and the case having passed without objection beyond the stage of interim orders and printing of the records we have heard arguments on merits also
The merits may now be considered
The challenge on the ground of lis pendens which had been accepted by the Courts in Madras right up to the High Court was directed against two kinds of sales  firstly there was the ostensibly voluntary sale of 7 7 1958 under a sale deed by the defendant Munisami Mudaliar and his major son Subramanian Mudaliar and three minor sons Jagannathan Duraisami alias 145 Thanikachalam and Vijayarangam in favour of the defendant appellant and secondly there was the sale evidenced by the sale certificate Exhibit B 51 of 15 7 1960 showing that the auction sale was held in order to realise certain arrears under hire purchase system due to Shri O D Munisami Mudaliar
The words due to must in the context be read as due from  because falsa demostration non nocet
The deed of the voluntary sale for Rs 105001 showed that Rs 737511 Ans were to be set off against the money due on a decree obtained by the purchaser against the sellers in original suit 256 of the Vellore Sub Court  Rs 5385 Answere left to liquidate the amount due for principal and interest due to the purchaser on a bond dated 14 10 1957 by Munisami Mudaliar Rs 6629 Answas to be set off to liquidate another amount due to the purchaser from Munisami on account of the principal and interest on another bond executed by Munisami Rs 125000 was left to pay off and liquidate the balance of a debt due to one Thiruvenkata Pillai from Munisami Rs 10000 were meant to settle a liability to the Government in respect of a purchase of cattle and for digging of some well Rs 5113 Answere to go towards settling a similar liability and only Rs 52111 Answere paid in cash to the seller after deducting other amounts for meeting liabilities most of which were shown as debts to the purchaser himself
It may be mentioned here that on 17 1 1944 Munisami had executed a mortgage of some of the property in Schedule B  of the plaint for Rs 7500 in favour of Kannayiram and he had executed a second mortgage in respect of one item of property of Schedule B  in favour of Patta Mal who had assigned his rights to T Pillai
A third mortgage of the first item of Schedule B  properties was executed on 27 5 1952 by Munisami in favour of the appellant Jayaram was said to be necessitated by the need to pay arrears of Rs 3000 incometax and for discharging a debt and a promote in favour of a man called Mudali
In 1955 an original suit No 1241955 had been filed by T Pillai who had obtained orders for the sale of the first item of Schedule B  properties shown in the plaint
The original suit No 2 of 1956 had been filed for principal and interest due on 27 5 1952 to the appellant who had obtained an attachment on 5 1 1956 of some schedule B  properties
The appellant had obtained a preliminary decree on 25 1 1956 in his suit and a final decree on 14 9 1957
All these events had taken Place before the institution of the partition suit on 23 6 1968
But the voluntary sale to satisfy decretal amounts was executed after this date
The second sale was an involuntary sale for realisation of dues under the provisions of section 7 of the Land Improvement Loans Act 19 of 1883 which could be realised as arrears of land revenue
There was nothing in the sale certificate to show that the due for 146 which properties were sold were of anyone other than Munisami individually
On the facts stated above the appellant Jayaram claims that both kinds of sales were outside the purview of the doctrine of lis pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which Munisami was the karta
The liabilities incurred by Munisami it was submitted as karta of the family had to be met in any case out of the properties which were the subject matter of the partition suit
It was urged that where properties are liable to be sold for pay ment of such debts as have to be discharged by the whole family only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre existing liabilities of the joint family
In the case of the sale for discharging dues under the Land Improvement Loans Act it was also contended that they obtained priority over other claims and for this additional reason fell outside the scope of the principle of lis pendens
The defendant respondent Munisami and the defendant appellant Jayaram had both pleaded that the properties in suit were acquired by Munisami with his own funds obtained by separate business in partnership with a stranger and that Ayyaswami plaintiff had no share in these properties
The plaintiff respondent s case was that although the properties were joint the liabilities sought to be created and alienations made by Munisami were fraudulent and not for any legal necessity and therefore not binding on the family  The Trial Court had found that the properties given in Schedule B  were joint family properties of which the defendant respondent Munisami was the karta in possession
This finding was affirmed by the first Appellate Court and was not touched in the High Court
It did not follow from this finding that all dealings of Munisami with joint family properties on the wrong assumption that he was entitled to alienate them as owner and not as karta would automatically become binding on the joint family
A karta is only authorised to make alienations on behalf of the whole family where these are supported by legal necessity
It was no party s case that the alienations were made on behalf of and therefore were legally binding on the joint family of which plaintiff respondent Ayyaswami was a member The Trial Court recorded a finding on which the learned Counsel for the appellant relies strongly  There is over whelming documentary and oral evidence to show that the sale deed Exhibit B7 and the revenue sale are all true and supported by consideration and that the 12th Defendant would be entitled to them if these sales were not affected by the rule of lis pendens Within the meaning of Section 52 of the Transfer of Property Act
 147 It may be mentioned here that the 12th Defendant is no other than the appellant Jayaram Mudaliar the son in law of defendant respondent Munisami Mudaliar who had purchased the properties covered by both the impugned sales
The plea of the plaintiff respondent Ayyaswami that the sales in favour of Jayaram the 12th defendant appellant were fraudulent and fictitious and the trial Court s decree for the partition included the properties covered by the two impugned sales evidenced by exhibit B7 and B5 1 yet the Commissioner who was to divide the properties by metes and bounds was directed to allot to Munisami s share so far as possible properties which were covered by Exhibit B7 and B51
This implied that the liabilities created by the decrees for whose satisfaction the sale deed dated 7 7 58 Exhibit B 7 was executed and the revenue sale of 16 3 1960 for loans under an agreement were treated as the separate liabilities of the defendant Munisami and not those of the joint family
The Trial Court as well as the First Appellate Court had also rejected the plea that the revenue sale of 16 3 1960 to satisfy pre existing liabilities of Munisami had any priority over the rights of the plaintiff respondent may get in the partition suit
The result was that the partition suit was decreed subject to a direction for the allotment of the Properties covered by Exhibit B 7 and B 51 so that the purchaser may retain these properties if they were allotted to Munisami
The High Court of Madras had described the sale of 7 7 1958 as a voluntary alienation and thereby placed it on a footing different from an involuntary sale in execution of a decree in a mortgage suit
The obligations incurred before the sale of 7 7 1958 by reason of the decrees in the mortgaged suits were not on this view liabilities which could be equated with either transfers prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary
So far as the revenue sale was concerned the High Court after setting out the terms of Section 7 of the Land Improvement Loans Act 19 of 1883 held that only that land sold was to be excluded from the purview of the principle of lis pendens for the improvement of which some loan was taken
This meant that only that part of the loan was treated as a liability of the joint family as could be said to be taken for the joint land
It therefore modified the decrees of the Courts below by giving a direction that further evidence should be taken before passing a final decree to show what land could be thus excluded from partition
The plaintiff appellant has relied upon certain authorities laying down that the doctrine of lis pendens is not to be extended to cover involuntary sales in execution of a decree in a mortgage suit where the mortgage was prior to the institution of the suit in which 148 the plea of lis pendens is taken because the rights of the purchaser in execution of a mortgage decree date back to the mortgage itself
They are Chinnaswami Paddayachi vs Darmalinga Paddyachi1 Gulam Rasool Sahib vs Hamida Bibi2   Baldeo Das Bajoria  Orsvs Sarojini Dasi  Ors3 Har Prashad Lal vs Dalmardan Singh4
Reliance was also placed on the principle laid down in Sityam Lal  Anr vs Sohan Lal  Ors5 to contend that since Section 52 of the Transfer of Property Act does not protect transferors a transfer on behalf of the whole joint Hindu family would be outside the purview of the principle in a partition suit
The contention advanced on the strength of the last mentioned case erroneously assumes that the impugned sales were on behalf of the joint family
Learned Counsel for the plaintiff respondent has in reply drawn our attention to the following observations of Sulaiman AgCJ expressing the majority opinion in Ram Sanehi Lal  Anrvs Janki Prasad  Ors6 FB  the language of section 52 has been held to be applicable not only to private transfers but also to Court sales held in execution of decrees
section 2 d does not make section 52 inapplicable to Ch 4 which deals with mortgages
This is now well settled  vide Radhama dhub Holdar vs Manohar Mukerji A and Moti Lal vs Kharrabuldin B followed in numerous cases out of which mention may be made of Sukhadeo Prasad V Jamna C 
But as we have no actual sale in execution of a mortgage decree this question need not be decided here
Another decision to which our attention was drawn was  Maulabax vs Sardarmal  Anr
The suggestion made on behalf of the appellant that attach ment of some schedule B  property before judgment in the purchaser s mortgage suit could remove it from the ambit of lis pendens is quit  unacceptable
A contention of this kind was repelled in K N Lal vs Ganeshi Ram 8 by this Court as clearly of no avail against the embargo imposed by Section 52 of the Transfer of Property Act
1 AIR 1932 Madras 566
3 AIR 1929 Calcutta 697
5 AIR 1928 All
7 AIR 1952 Nag
341 2 AIR 1950 Madras 189
4 ILR 32 Calcutta 891
6 AIR 1931 All
P 466  480
8  at 21 149 The High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of As pendens cannot be extended to voluntary sales in any case
Obviously its view was that even where a voluntary sale takes place in order to satisfy the decretal amount in a mortgage suit the result of such a sale was not the same as that of an involuntary sale in the course of execution proceedings where land is sold to satisfy the decree on the strength of a mortgage which creates an interest in the property mortgaged
The High Court had observed that as regards the satisfaction of the mortgage decree in his favour which was part of the consideration for the sale of 7 7 1958 the appellant purchaser decree holder could get the benefit of Section 14 and still execute his decree if it remained unsatisfied due to failure of consideration
An examination of the sale deed of 7 7 1958 discloses that it is not confined to the satisfaction of the decretal amounts
Other items are also found in it
The sale deed does not purport to be on behalf of the Hindu joint family of which Ayyaswami the plaintiff and Munisami Defendant No 1 could be said to be members
It no doubt mentions the sons of Munisami Mudaliar but not Ayyaswami plaintiff among the sellers
As already indicated Munisami Defendant Respondent as well as Jayaram Defendant Appellant having denied that the properties in dispute were joint could not take up the position that the sales were binding on the whole family
Therefore we are unable to hold that the assumption of the Madras High Court that the voluntary sale could not bind the whole family of which Munisami was the karta was incorrect
Learned Counsel for the appellant had also relied on Bishan Singh vs Khazan Singh1 That was a case in which before the deposit of money by the pre emptors in a suit to enforce their rights to pre emption the vendee had sold his rights to the appellant who had an equal right of pre emption
It was held there that the claim for pre emption could be defeated by such a device which fell outside the purview of the principle of lis pendens
We think that this decision turns Upon its own facts and on the nature of the right of pre emption which as was observed there is a weak right
This Court had held that this weak right could be defeated by a sale which a vendee is compelled to make for the purpose of defeating the night provided the purchaser s superior or equal right to Pre emption had not been barred by limitation
On the question considered there the view of the East Punjab High Court in Wazir Ali Khan vs Zahir Ahmad Khan2 was preferred to the view of the Allahabad High Court in Kundan Lal vs Amar 1  2 ATR 1949 East Punj150 Singh1 The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing a right of preemption must we think be confined to cases of sales which could defeat preemptors claims
It has to be remembered that a technical rule of the law of preemption is that the preemptor to succeed in his suit must continue to possess the right to preempt until the decree for possession is passed in his favour
As regards the revenue sale of 16 3 1960 Exhibit 051 we find that the sale certificate is even less informative than the voluntary sale deed considered above
Nevertheless the view taken by the Madras High Court was that any land for to improvement of which loan is shown to have been taken by Munisami Mudaliar would be excluded from the purview of the doctrine of lis pendens
It is however urged that the High Court had given effect to clause c of Section 7 of the Land improvement Loans Act of 1883 but had overlooked clause a
1 Here the relevant part of Section 7 sub section1 of this Apt may be set out
It reads as follows 7Recovery of loans 1 Subject to such rules as may be made under Section 10 all loans granted under this Act all interest if any chargeable thereon and Costs if any incurred in making the same shall when they become be  recoverable by the Collector in all or any of the following modes name a from the borrower as if they were arrears of land revenue due by him b from his surety if any as if they were arrears of land revenue due by him c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land d out of the property comprised in the collateral security if any according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due  Provided that no proceeding in respect of any land under clause c shall affect any interest in that land which existed before the date of the order granting the loan other than the interest of the borrower and of mortgages of or persons having charges on that interest and where the loan is  granted under Section 4 with the consent of another person the interest of that person and of mortgagees of or persons having charges on that interest
 Reliance was also placed on Sec42 of the Madras Revenue Recovery Act of 1864 which reads as follows All lands brought to sale on account of arrears of revenue shall be sold free of all incumbrances and if any balance shall remain after liquidating the arrears with interest and the expences of attachment and sale and other costs due in respect to such arrears it shall be paid over to the defaulter unless such payment be  prohibited by the injunction of a Court of competent jurisdiction
 It will be seen that the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause 7 1 a ls concerned
The proviso enacts that even recoveries falling under Sec 7  1  c do not affect prior interests of persons other than the borrower or of the party which consents to certain loans
In the case before us the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed on the land
It did not therefore follow that this liability was incurred on behalf of the joint family unless it amounted to an unprovement of the joint land
Every transaction of Munisami or in respect of joint property in his possession could not affect rights of other members
It was for this reason that Section 7 1 a was not specifically applied by the High Court
But at the same time the direction that the properties sold should so far as possible be allotted to Munisami meant that the purchaser could enforce his rights to them if they came to the share of Munisami
The question of paramount claims or rights of the Government for the realisation of its taxes or of dues which are equated with taxes was also raised on behalf of the appellant on the strength of Builders Supply Corporation vs The Union of India1 In that case the origin of the paramount right of the State to realise taxes due which could obtain priority over other claims was traced to the prerogatives of the British crown in India
Apart of the fact that there is no claim by the State before us we may observe that where a statutory provision is relied upon for recovery of dues the effect of it must be confined to what the statute en acts
Even under the English law the terms of the statute displace any claim based on prerogatives of the Crown 1 152 vide Attorney General v De Keyser s Royal hotel Ltd 1 And in no case can theclaim whatever its basis justify a sale of that property which doesnot belong to the person against whom the claim exists
As already observed a claim under Section71a of the Land Improvement Loans Act of 1883 could only be made from the borrower
This meat that unless it was proved that Munisami in taking a loan under the Act was acting as the karta of the joint Hindu family of which Ayyaswamy was a member recovery of arrears could only be made from Munisami s share in the 1and
That this could be done was in our opinion implied in the direction that the properties sold should so far as possible be allotted to the share of Munisami
As some argument has been advanced on the supposed in applicability of the general doctrine of lis pendem to the impugned sales the nature the basis and the scope of this doctrine may be considered here
It has been pointed out in Bennet On lis pendens that even before Sir Francis Bacon framed his ordinances in 1816  for the better and more regular administration of justice in the chancery to be daily observed stating the doctrine of lis pendens in the 12th ordinance the doctrine was already recognized and enforced by Common law Courts
Bacon s ordinance on the Subject said  No decree bindeth any that commeth in bona fide by conveyance from the defendant before the bill exhibited and is made no party neither by bill nor the order but where he comes in pendente life and while the suit is in full prosecution
and without any colour of allowance or privity of the court there regularly the decree bindeth but if there were any intermissions of suit or the court made acquainted with the conveyance the court is to give order upon the special matter according to justice
 The doctrine however as would be evident from Bennet s work mentioned above is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim Rem dequa controversia prohibemur in acrum dedicate a thing concerning which there is a controversy is prohibited during the suit from being alienated
Bell in his commentaries on the lows of Scotland1 said that it was grounded on themaxim Pendente lite nibil innovandum
He observed It is a general rule which seems to have been recognized in all regular systems of jurisprudence that during the pendence of an action of which the object is to 1  2 2 Bell s Com on laws of Scotland p 144153 vest the property or obtain the possession of real estate a purchaser shall be held to take that estate as it stands in the person of the seller and to be bound by the claims which shall ultimately be pronounced
 In the Corpus Juris Secundum VolLIV P 570 we find the following definition  Lis pendens literally means a pending suit and the doctrine of lis pendens has been defined as the jurisdiction power or control which a court acquires over property involved in suit pending the continuance of the action and until final judgment therein
 Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the court to deal with it and thus make the proceedings infructuous
It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down  During the pendency in any Court of any suit or proceeding which is not collusive and 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 thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose
 It is evident that the doctrine as stated in Section 52 applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it by any party to the suit or proceeding so as to affect the right of any other party thereto
Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax Collecting authorities of the Government which proceeds against the subject matter of litigation without anything done by a litigating party the resulting transaction will not be hit by Section 52
Again where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts
All these are matters which the Court could have properly considered
The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward
11 1208S ipCT72 154 In the case before US the Courts had given directions to safeguard such just and equitable claims as the purchaser appellant may have obtained without trespassing on the rights of the plaintiff respondent in the joint Property involved in the partition suit before the Court
Hence the doctrine of lis pendens was correctly applied
For the reasons given above there is no force in this appeal which is dismissed with costs
Sikri C J
I have had the advantage of perusing the judg ment prepared by my brother Beg J but as I arrive at the same conclusion by a slightly different route I am writing a separate judgment
I may give a few facts to make the judgment self sufficient
The following pedigree may enable us to appreciate the facts Muniappa Mudaliar Doraiswamy Mudaliar ChidambaraGovindaswamy Muda died on 4 9 1937 Mudaliarliar died 1940 wife 6th Defdied pendingAnnammal 10th Defsuit Muniswami Ayyaswami Def7 Def8 Def 9 Mudaliar 1st DefMudaliar died pending suit Plaintiff Def 2 Def3 Def 4 Def  5 12th DefJayaram Mudaliar alinee of DefNo 1
On June 23 1956 Ayyaswami Plaintiff filed a pauper petition No 1371958
In the plaint he claimed a partition of B Schedule properties which according to him belonged to Joint Hindu Family consisting of himself and the defendants
While this suit was pending defendant No 1 Muniswami Mudaliar and four of his sons executed a sale deed exhibit B7 in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7 1958
These properties comprised items 5 15 to 19 24 and 28 of Schedule B
On July 15 1960 a certificate of sale exhibit B51 was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property described in the certificate for Rs 6500 
The property is stated to have been sold for  pumpset arrears under Hire Purchase System due by Muniswami Mudaliar
Exhibit B 51 covered items 4 18 20 23 to 27 and 155 31It is common ground that these properties were included in the B Schedule mentioned in the plaint
It is stated in the judgment of the Trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant
He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant
Additional issues were framed in the suit
It appears that by virtue of order dated September 18 1961 the plaint was amended and paras 24a and 24b inserted
They read  24a The 12th defendant is a close agnate of the son in law of the 1st defendant
He executed the sham and nominal sale deed dated 7 7 1958 in favour of the 12th defendant to defeat the plaintiff s rights and to secrete the properties
It was not acted upon
It is the 1st defendant that continues to be in possession even now
The alleged sale deed is not supported by consideration
The mortgage itself was brought about to defeat any rights
In any event on the date of the alleged sale deed dated 7 7 1958 the mortgage decree debt was not subsisting
The plaint was filed in forma pauperis as OP 137 of 1958 on the file of this Hon ble Court on 23 6 1958
Thus in any event the sale is hit by the rule of lis pendens and the sale deed dated 7 7 1958 cannot and does not confer any rights on the 12th defendant
24b The revenue sale is brought about collusively and fraudulently
There was no publication
The 12th defendant never got into possession of any property
The possession still continues to be with the 1st defendant on behalf of the joint family
The sale is also hit by the rule of lis pendens
It also does not and cannot confer any rights on the 12th defendant
 Following additional issues were raised out of the pleadings of the 12th defendant  1 Whether the plaint B Schedule properties are joint family properties  2 Whether the plaintiff is entitled to question the alienations in favour of the 12th defendant  3 Whether the sale deed dated 7 7 1958 by the 1st defendant in favour of the 12th defendant true valid and binding on the plaintiff and is affected by LIS PENDENS  156 4 Whether the Revenue sale by the Collector dated 16 3 1960 is liable to be questioned by the plaintiff  5 Is the suit without impleading the Government liable to be questioned by the plaintiff  6 Is the sale of pump set by the 1st defendant to the 12th defendant true valid and binding on the plaintiff  7 Whether the plaintiff and other members became divided from the 1st defendant after 1939  8 To what equities if any is the 12th defendant entitled  9 Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties  We are only concerned with issues 3 and 4 above
The Trial Court held that the sale deed exhibit B7 and the revenue sale are all true and supported by consideration and that the 12th defendant would be entitled to them if these sales were not affected by the rule of lis pendens  within the meaning of section 52 of the Transfer of Property Act
Regarding lis pendens he held that the purchases under both exhibit B7 and exhibit B51 were affected by the rule of lis pendens
The Trial Court passed a preliminary decree for partition of B Schedule properties items 2 to 31 into six equal shares
It protected the interest of the 12th defendant by stating that as far as possible the Commissioner appointed in the suit for division of the properties will allot to the plaintiff s share such of the properties which are not covered by ExsB 7 and B 51
The District Judge confirmed the decree
Before the High Court in appeal by defendant No 12 the only point considered was that of lis pendens
The High Court held that exhibit B7 was a case of voluntary alienation and was hit by lis pendens as the sale was not in execution of a mortgage decree
Regarding exhibit B51 the High Court relying on Ponnuswami vs Obul Reddy1 held that exhibit B51 would not be affected by lis pendens as the loans were granted under the Land Improvement Loam Act to the extent that the loans were taken for the improvement of the properties
As it had not been considered whether all the properties which were sold in revenue sale and conveyed under exhibit B51 were lands for the improvement of which loans were taken the High Court directed 1 AIR 1939 Mad157 In the final decree proceedings the trial court were to consider what were the properties for the improvement of which the loans under the Land Improvement Loans Act were taken by the first defendant in respect of those properties alone the doctrine of lis pendens will not apply
In respect of other properties the doctrine of lis pendens will apply
The trial court take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken With this modification the High Court dismissed the appeal
Defendant No 12 applied for a certified copy of the Judgment and Decree on July 22 1968 and these were made ready on August 9 1968 and delivered on August 12 1968
Defendant No 12 moved the High Court by letter dated August 22 1968 requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent
The learned Judge who heard the appeal by his order dated September 6 1968 refused the leave on the ground that the leave was not asked for immediately on delivery of judgment and that it could not be asked for afterwards
Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side 1965 under which the leave asked for was refused reads 28 When an appeal against an appellate decree or order has been heard and disposed of by a single judge any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered
This Court granted special leave
At the outset Mr Chagla raised the preliminary objection that the appeal was incompetent as Defendant No 12 failed to ask for certificate orally and immediately after the judgment was delivered
The learned counsel for Defendant No 12 urged that Rule 28 of Order 4 was ultra vires
Two points thus arise out of the contentions of the parties  1 Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires  2 Are the Sales by exhibit B7 and exhibit B51 hit by the rule of lis pendens  Clause 15 of the Letters Patent inter alia provides for an appeal to the High Court from a judgment of one judge made in 158 exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to its superintendence where the Judge who passed the judgment declares that the case is a fit one for appeal
Clause 37 of the Letters Patent confers powers on the High Court to make rules and orders for the purpose of regulating all proceedings in civil cases
This Court held in The Union of India vs Ram Kanwar1 that under el27 of the Letters Patent which is in similar terms as el
37 mentioned above the High Court of Judicature at Lahore had the power to make a rule prescribing the period of limitation in respect of appeals from Orders made by that Court in exercise of its original jurisdiction to a Division Bench of that Court
It seems to me that the High Court can equally frame a rule regulating the time at which and the manner in which the application for a certificate shall be made
Rule 28 of Order 4 does not take away any right conferred by el 15 of the Letters Patent
It only regulates the manner of the exercise of that right
It was said that the rule unduly restricts the right of the litigant to peruse the judgment and make up his mind whether to appeal or not
But if the declaration is made immediately by the Judge that the case is fit one for appeal there is nothing to prevent the litigant from not filing the appeal if he considers it inadvisable to do so
I need not discuss the point whether the Judge will have the right to condone a breach of the Rule because no application seems to have been made to condone the breach of the Rule
But this conclusion does not render the appeal before us incompetent
Leave was given by this Court after hearing the respondents on October 14 1968
On April 22 1969 the respondents obtained an order from this Court for expediting the hearing
No application was made at that stage to raise the point of incompetency of appeal
In the circumstances I consider that the appeal should be disposed of on merits
Coming to the second point this Court has considered the 7scope of section 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases
There is no difficulty in holding that exhibit B7 falls within the provisions of section 52 of the Transfer of Property Act
But exhibit B51 stands in a different position
It was held in Samarendra Nath Sinha  Anrvs Krishna Kumar Nag1 that the principle of lis pendens applies even to involuntary alienations like court sales
Shelat J observed  The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right title and interest from or through him
This principle is well illustrated in Radhamabhub Holder vs Monohar1 where the facts were almost similar to those in the instant case
It is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales
But it is well established that the principle of lis pendens applies to such alienations
See Nilkant vs Suresh Chandra2 and Motilal vs Karrabuldin 3 These observations were referred to with approval by this Court in Kedar Nath Lal vs Ganesh Ram1
If the principle of lis pendens applies to court auctions there is no reason why it should not apply to revenue sales
But the effect of the application of the principle  may vary according to the nature of the provisions under which the revenue sale is held
The principle of lis pendens does not affect pre existing rights
If there is a valid charge or mortgage on a property this does not vanish because the property becomes the subject matter of a partition suit
In this case according to defendant No 12 a valid charge subsisted on the lands by virtue of the provisions of the Land Improvement Loans Act
Under section 7 of the Land Improvement Loans Act loans are recoverable by the Collector in all or any of the following modes namely a from the borrower as if they were arrears of land revenue due by him b  c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land The proviso to section 7 reads Provided that no proceeding in respect of any land under clause c shall affect any interest in that land which existed before the date of the order granting the loan other than the interest of the borrower and of mortgagees of or persons having charges on that interest and where the loan is granted under Section 4 with the consent of another persons the interest of that person and of mortgagees of or persons having charges on that interest
 Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances
The liability of the land to be sold under section 7 c of the Act was a pre existing charge and that subsisted as from the date of the loan
This was not affected by the institution of the suit for partition
This charge could be enforced by the State notwithstanding the pendency of the partition suit
No decree in the Partition suit could have effaced the charge
Therefore if the State has sold only the property in respect of which loan was taken the purchaser defendant No 12 is not prejudiced by the principle of lis pendens
Therefore the direction of the High Court was right insofar as it directed the Trial Court to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken from the other properties
In the result the appeal fails and is dismissed
G C Appeal dismissed


Summary:
The plaintiff respondent filed a suit for partition of properties men the first defendant plaintiff s brother was the Karta
After the filing of the suit the first defendant and his sons made a voluntary sale of some of the properties in suit by sale deed exhibit B7 to the appellant
Certain other suit properties mentioned in exhibit B51 were sold at a public auction under the provisions of the Land Improvement Loans Act 19 of 1883 in connection with arrears of a loan taken by the first defendant for the purchase of a pump set
These properties were also purchased by the appellant
The plaintiff respondent challenged the validity of the sales under exhibit B7 and exhibit B51 relying on the doctrine of lis pendens embodied in section 52 of the Transfer of Property Act
The trial court held that the sales were genuine and that the proper ties sold were joint family properties negativing the claim of the first defendant that they were his individual properties
The doctrine of his pendens held to be applicable to the properties sold
In the decree for part however the trial court directed the Commissioner who was to divide the properties by metes and bounds to allot to the share of the first defendant so far as possible properties which were covered by exhibit B7 and B51
The High Court in second appeal held that although the sale under exhibit B7 was made to satisfy the decree in certain mortgage suits it was a voluntary sale and could not be equated with sales in execution of mortgage decrees which are involuntary
So far as the revenue sale under exhibit B51 was concerned the High Court after setting out the terms of section 7 of Act 19 of 1883 held that only that land sold was to be excluded from the purview of the principle of lis pendens for the improvement of which some loan was taken
It therefore modified the decrees of the Courts below by giving a direction that further evidence should be taken before  passing a final decree to show what land could be thus excluded from partition
The High Court rejected the application of the appellant for leave to appeal to the Division Bench on the ground that no oral request immediately after delivery of judgment was made as provided in Rule 28 Order 4 of the Madras High Court Appellate Side Rules 1965
This Court however allowed special leave to appeal under article 136 of the Constitution
Apart from the writs the Court had to consider a preliminary objection requiring the appeal to be dismissed in limine
In this connection the validity of Rule 28 Order 4 also fell for consideration HELD  i Per Ray and Beg JJ
Rule 28 of Order 4 of the Madras High Court Rules does not purport to affect the power to give the declaration contemplated by clause 15 of the Letters Patent
It is evident that the rule is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed by the 
The judge pronouncing the judgment can decide then and there in the presence of the parties or their counsel whether the case calls for a certificate
In a suitable case where a party is able to prove that it 140 was prevented due to some cause beyond its control from asking for leave at the proper time the judge concerned may condone the delay or extend the time by applying section 5 of the 
This salutary rule could not therefore be held to be ultra vires or invalid
143 F H Penu Balakrishna Iyer  Ors vs Sri Ariya M Ramaswami Iyer In the present ease although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time yet the special leave petition having been granted and the case having passed without objection beyond the stage of interim orders and printing of records the Court heard arguments on merits also
144 F G Per Sikri CJ concurring The High Court can regulate the time at which and the manner in which the application for certificate  WI be made
Rule 28 Order 4 does not take away any right conferred by cl 15 of the Letters Patent
It only regulates the manner of the exercise of that right
Union of India vs Ram Kanwar   referred to
ii Per Ray  Beg JJ
Expositions of the doctrine of lis pendens indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation so that the parties litigating before them may not remove any part of the subject matter outside the power of courts to deal with it and thus make proceedings infructuous
153C The purpose of section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward
In the present case the Courts had given directions to safeguard such just and equitable claims as the purchaser may have obtained without trespassing on the rights of the plaintiff respondent in the joint property involved in the partition suit before the Court
Hence the doctrine of lis pendens was correctly applied 153H 154A In regard to the sale under exhibit B7 the High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case
149 A An examination of the sale deed exhibit B7 disclosed that it was not confined to the satisfaction of decretal amounts
Other items were also found in it
The sale deed did not purport to be on behalf of the Hindu joint family of which the plaintiff and the first defendant could be said to be members
The sons of the first defendant were among the sellers but not the plaintiff
At most it could be a sale binding on the shares of the sellers
The first defendant as well as the appellant having denied that the properties in dispute were joint could not take up the position that the sales were binding on the whole family
Therefore it could not be held that the assumption of the High Court that the voluntary sale could not bind the whole family of which the first defendant was the Karta was incorrect
Bishan Singh vs Khazan Singh 1959 SCR  878 distinguished
As regards the revenue sale under exhibit B51 the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause 71a of Act 19 of 1883 is concerned
The proviso enacts that even recoveries falling under section 71 C do not affect prior interests of persons other than the borrower or of the party which consents to certain loans
In the present case the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed
on the 141 land
It did not therefore follow that this liability was incurred On behalf of the joint family unless it amounted to an improvement of the joint land
Every transaction of the first defendant or in respect of joint property in his possession could not affect rights of other members
it was for this reason that section 71 a was not specifically applied by the High Court
But at the same time the direction that the properties sold should so far as possible be allotted to the first defendant meant that the purchaser could enforce his rights to them if they came to the share of the first defendant
151D F Where a statutory provision is relied upon for recovery of dues the effect of it must be confined to what the statute enacts
Even under the English law the terms of the statute displace any claim based on the prerogatives of the Crown
And in no case can the claim whatever its basis justify a sale of that property which does not belong to the person against whom the claim exists
151H Builders Supply Corporation vs The Union of India and Attorney General vs Dekerysis Royal Hotel Ltd   referred to
Per Sikri CJ concurring Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances
The liability of the land to be sold under section