Jayarama Mudaliar vs Ayyaswami Mudaliar and Others

A. Alagiriswami, J.—One Muniappa had three sons, Doraiswami, Chidambara and Govindaswami. Doraiswami died on, 24th September,

1937, leaving two sons Munuswami, the first defendant, and Ayyaswami, the plaintiff. Defendants 2 to 5 are the first defendant''s sons.

Chidambara is the 6th defendant. Govinda-swami''s sons are defendants 7, 8 and 9, and his widow is the 10th defendant. The 12th defendant,

who is the appellant before this Court, is an alienee from the .first defendant under Exhibit B-7, dated 7th July, 1958, in respect of items 5, 15 to

19, 24 and 28 of the '' B'' Schedule; under Exhibit B-51, dated 15th July, 1960, of items 4, 18, 20, 23, to 27 and 31 of the same schedule under a

revenue sale and from 1st defendant Exhibit B-15, dated 24th July, 1960 of item 32. It should be mentioned that Exhibit B-15 relates to the sale of

an oil engine and pumpset. In respect of the last item, both the Courts below have held that the sale of this item to the 12th defendant is valid and is

not hit by lis pendens. In respect of the alienations covered by Exhibits B-7 and B-51, they have held that both sets of sale are hit by lis pendens,

because the pauper petition in this case was filed on 23rd June, 1958.

Exhibit B-7 is a case of voluntary alienation. Therefore, the argument on behalf of the 12 th defendant-appellant that it is not hit by lis pendens,

as the alienation was in discharge of an earlier obligation due by the first defendant, cannot be accepted. The decisions relied on by the 12th

defendant cannot help him. In Chinnaswami Padayachi Vs. Darmalinga Padayachi, , the learned Judges quote with approval the opinion expressed

by Mukherjee, J., in Ram Sanehi Lal and Another Vs. Janki Prasad and Others , to the following effect:

The rule (lis pendens) only applies to transfers by the plaintiff or defendant of their respective interests after the suit, including transfers by Court

sale in money decrees against either party. But it does not apply to previously existing transfers (including mortgages) or legal proceedings to

enforce such transfers by those entitled. On principle, the sale in pursuance of a mortgage decree,, the mortgage having been executed before the

institution of the suit, is not affected by the doctrine of lis pendens.

In this case, the sale in Exhibit B-7 was not in execution of a mortgage decree, though the 12th defendant had obtained a mortgage decree against

the first defendant on the foot of a mortgage executed by him before this suit was instituted. Therefore this decision cannot help him. If the 12th

defendant had executed; the mortgage decree obtained by him and brought the properties to sale and purchased them, then different

considerations may arise. The decision in Gulam Rasool Saheb Vs. Hamida Bibi, , lays down that the doctrine of lis pendens is not to be extended

to cover an involuntary alienation in execution of a mortgage decree, where the, mortgage was prior to the suit, relied on as operating to affect the

rights of the parties u/s 52 of the Transfer of Property Act, and the rights of the purchaser in execution of the mortgage decree dates back to the

date of the mortgage.. That again cannot help the appellant. Therefore, the conclusion of the Courts below that the sale under Exhibit B-7 was

affected by lis pendens is correct.

In respect of the revenue sales in which the 12th defendant purchased the properties under Exhibit B-51, however, the position is somewhat

difficult. The sales were held under the Land Improvement Loans Act for the loans taken by the first defendant. Ponnuswami Chettiar Vs. Ellasari

Obul Reddi, , lays down clearly that the doctrine of lis pendens does not affect sales under the Revenue Recovery Act. But, on behalf of the

plaintiff two points are urged. One is that the sales would affect only the share of the first defendant, and secondly, that in any case, the principle

that Us pendens cannot apply to revenue sales can only relate to the property for the improvement of which the loan under the Land Improvement

Loans Act has been taken. u/s 7 of the Land Improvement Loans Act (XIX of 1883), the loans granted under that Act may be recovered : (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; and

(d)....(does not arise in this case). Thus the land itself is liable and not merely the share of the person who took the loan. But the other contention

that the revenue sale could only affect property in respect of which the loan under the Land Improvement Loans Act was taken by the first

defendant, is a valid one. It does not appear whether all the properties which Were sold in revenue sale and conveyed under Exhibit B-51 were

lands for the improvement of which the loan was taken. This question has not been considered by the Courts below, and therefore, in any case, the

matter will have to be considered from that point of view.

In the circumstances, therefore, I think it is sufficient if 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 can 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 Second Appeal is dismissed. The parties will bear their own costs.

As regards the mortgage decree which was part of the consideration for the sale deed, Exhibit B-7, executed by the first defendant in favour of

the 12th defendant, it should be possible for the 12th defendant to execute it on the ground that the sale having been found to be affected by lis

pendens, the consideration for the sale has failed, and therefore the time taken should be excluded u/s 14 of the Limitation Act, and that he should

be allowed to execute the decree. This should not be taken as implying that the question as to whether the decree is binding against defendants

other than the first defendant has been decided in this appeal.