Case: Jayaram Mudaliar Vs. Iyyaswaar &amp; Ors

1. I have had the advantage of perusing the judgment 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 :2. On June 23, 1956 Ayyaswami (Plaintiff) filed a pauper petition No. 137/1958. 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 (Ex. B-7) 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 (Ex. B-51) was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property (described in the certificate) for Rs. 6,500/-. The property is stated to have been sold for "pump set arrears under Hire-Purchase System due by Muniswami Mudaliar." Exhibit B-51 covered items 4, 18, 20, 23 to 27 and 31. It is common ground that these properties were included in the B Schedule mentioned in the plaint3. 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 Ist defendant. Additional issues were framed in the suit4. It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24 (a) and 24 (b) inserted5. 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 alienation in favour of the 12th defendant ?(3) Whether the sale deed dated 7-7-1958 by the Ist defendant in favour of the 12th defendant true, valid and binding on the plaintiff and is affected by lis pendens ?(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 Ist defendant to the 12th defendant true, valid and binding on the plaintiff ?(7) Whether the plaintiff and other members became divided from the Ist defendant after 1939 ?(8) To what equisities, 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 ?6. We are only concerned with issues 3 and 4 above7. The trial Court held that the sale deed, Ex. B-7, 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 Ex. B-7 and Ex. B-51 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 to be appointed in the suit for division of the properties will allot to the plaintiffs share such of the properties which are not covered by Exs. B-7 and B-51."8. 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 Ex. B-7 was a case of voluntary alienation and was hit by lis pendens, as the sale was not in execution of a mortgage decree. Regarding Ex. B-51 the High Court, relying on Ponuswami v. Obul Reddy, AIR 1939 Mad 256   held that Ex. B-51 would not be affected by lis pendens, as the loans were granted under the Land Improvement Loans 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 Ex. B-51 were lands for the improvement of which loans were taken, the High Court directed :"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 will 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 appeal9. 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 Letters 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 afterwards10. 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 cl. 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered."11. This Court granted special leaveJayaram Mudaliar, the Appellant before us by Special Leave, purchased some leasehold land for Rs. 10,500/- from Munisami Mudaliar and others under a sale deed of 7-7-1958 (Exhibit B-7) and some other land shown in a sales certificate dated 15-7-1960, (Exhibit B-51) sold to him for Rs. 6,550/- 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 partititon 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.

Reasoning: 15. Coming to the second point, this Court has considered the scope 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 Ex. B-7 falls within the provisions of Section 52 of the Transfer of Property Act.But Ex. B-51 stands in a different position. It was held in Samarendra Nath Sinha v. Krishna Kumar Nag, (1967) 2 SCR 18     at p. 28 = (AIR 1967 SC 1440  ) that the principle of lis pendens applies even to involuntary alienation like Court sales. Shelat J., observed:19. In the result the appeal fails and is dismissed29. 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 pre-existing 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 payment 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 pendens30. 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 Ayyasami, plaintiff, had no share in these properties. The plaintiff-respondents 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.