Appellants: A. Palaniappa Mudaliar and other vs Sivanmalai Gounder and another

Ramaswami, J.—This second appeal is directed against the decree and judgment of the learned District Judge of Tiruchirapalli in A. S. No.

17 of 1954. confirming the decree and judgment of the learned Subordinate Judge of Tiruchirapalli in O. S. No. 331 of 1951. The facts of this

case leading to the emergence of the controversy before us viz., whether the sale under Ex. B. 9 being a transfer of property pending O. S. No. 31

of 1950, Sub Court, Tiruchirapalli, relating thereto, is ineffective as against the appellants before us or will not be affected by his pendent by reason

of the decree in O. S. No. 31 of 1950 being obtained by collusion, have, it is undisputed, been accurately summarized by the learned District

Judge as follows; Arunachalam, the father of plaintiffs 1 and 2"" bought two properties, items 2 to 5 in the certificate of sale Ex. B. 2, in Court

auction. One item Parayangadu was roughly 39 cents in extent and the property now in suit is part of this property. The other was a half share in a

property called Kallangadu, about 12 acres in extent. The price paid was Rs. 203, but the purchase was subject to a prior encumbrance of Rs.

5,000 in favour of Arunachala and his brother Sadaya. Under the original of Ex. B. 3 dated 7th July 1933 Arunachala sold the two properties to

one Vellaya for Rs. 1500.

In pursuance of his purchase Vellaya took actual delivery through Court of Parayangadu on 20th March 1934 and it would also appear that he

took symbolical delivery of the half share in Kallangadu. On 5th May 1934, Vellaya sold the northern 10 acres of Parayangadu to one

Chinnammal for Rs. 200 and on 22nd November 1934 he sold an undivided half share in the remaining 28-94 acres for Rs. 1,000 to one

Tirumalaswami who has been examined as D, W,. 1. Under Ex. B-4 dated 3rd April 1937 he sold the remaining undivided half of the southern 28-

94 acres for Rs. 1,000 to one Kuppayi, the daughter-in-law of the plaintiffs'' paternal uncle Sadaya and to her son Kuppannan who later under Ex.

B-6 dated 29th August 1946 released his rights in the property in favour of his mother. In 1944 the present plaintiffs 1 and 2 instituted O. S. No.

349 of 1944 on the file of the District Munsif. Karur, against Vellaya and other persons interested in Kallangadu for partition and possession of

their half share on the allegation that the sale under Ex. B-3 by their father was nominal and that the vendee Vellaya held the property only as a

trustee for them. This suit was dismissed on the finding that the sale Ex. B-3 was good and conveyed full title to Vellaya. Then on 2nd April 1949

the plaintiffs 1 and 2 instituted O. S. No. 31 of 1950 in the Sub Court, Tiruchirapalli, for recovery of the property now in suit viz., the northern half

of the southern 28-94 acres of Parayangadu: see Ex. B-I5, the plaint copy. To that suit Kuppayi, her son Kuppannan and D. W. 1, the purchaser

of the southern 28-94 acres in undivided halves, and Chinnammal, the purchaser of the northern 10 acres of Parayangadu, and also the legal

representatives of Vellaya were made parties. The allegation in this suit in regard to Ex. B-3 was the same as in the previous suit O. S. No. 349 of

1944 and it was further alleged that the sales to Chinnammal and D. W. 1 being with the consent of their father, were valid but that the sale to

Kuppayi and Kuppannan under Ex. B-4 being without such consent was in breach of trust and conveyed no valid title. Further that, although D.

W. 1 and Kuppayi were purchasers of undivided halves, they were actually in separate enjoyment, Kuppayi of the northern half and D. W. 1 the

southern half of the southern 28-94 acres. In the alternative, they prayed for partition of their half share in the 28-94 acres. None of the defendants

appeared to contest that suit and on 31st January 1951 the plaintiffs 1 and 2 obtained an ex parte decree (Ex.A-6). Under Ex. A 1 dated 6th

October 1951 they purported to take delivery through Court and under Ex. A-3 dated 7th October 1951 to lease it to plaintiffs 3 and 4.

Meanwhile under Ex. B-9 dated 30th August 1950 Kuppayi had in pursuance of the agreement Ex. B-8 dated 23rd July 1930 sold the undivided

half purchased by her under Ex. B-4 to the two defendants for Rs. 3,900 and this war, as Ex. B-12 shows, after she was served with summons on

6th April 1950 in O. S. No. 31 of 1950. In the present suit. Out of which this second appeal arises, which is for a declaration of title and for an

injunction, the plaintiffs again assail the sale by their lather Ex. B-3 as in their previous suits. They further contend that defendants being purchasers

pendent lis were bound by the decree passed against their vendor Kuppayi in O. S. No. 31 of 1950. They attack Exs. B-4 and B-9 as being

unsupported by consideration, and the former also as being executed in breach of trust, They claim to have taken actual possession under Ex. A-1

of the suit property in execution of the decree in O.S. No. 31 of 1950.

The defendants contended that the sales under Exs. B-3, B-4 and B-9 were good and genuine sales conveying full title, that possession passed

with the said sales and that the alleged delivery to the plaintiffs under Ex. A-1 was a mere paper delivery. They further contended that plaintiffs

were not in possession and were therefore not entitled to any injunction, that D. W. 1 and defendants between themselves are in possession of the

whole of the southern 28-94 acres, that there has been no partition in respect of the undivided moieties purchased by D. W. 1 and Kuppayi but for

convenience D.W. 1 had been cultivating the northern moiety viz., the suit property, and Kuppayi and after her defendants the southern moiety,

that in any event they were bona fide purchasers for consideration, that the decree in O. S. No. 31 of 1950 being allusively obtained was not

binding on them and that on the other hand the plaint if Is were bound by the dismissal of O. S. No. 349 of 1944 and their present suit was

therefore barred by res judicata.

The learned Subordinate Judge dismissed the plaintiffs suit which was confirmed in appeal by the learned District Judge. Hence this second

appeal by the defeated plaintiffs.

Section 52 of the Transfer of Property Act indicates the doctrine of lis pendens as follows:

During the pendency in any Court having authority within the limits of India excluding the state of Jammu Kashmir.... 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.........

This Section has been amended by the Amending Act XX of 1929, Before the Amendment it was as follows :

During the active prosecution, in any Court having authority in British India or established beyond the limits of British India by the Governor-

General in Council, of a contentious suit or proceeding in which any right to immovable property is directly or 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.

Bennett in his valuable monograph ""A Treatise on the Law of lis Pendent or the Effect of Jurisdiction upon Property involved in Suit."" defines the

term ""lis Pendent"" (1887) as follows:

The words lis and pendent, lie and pendent, mean precisely what their Latin significations are;

Lis means an action, a suit, a cause, a controversy. Pendent it the present participle of Pendo, meaning continuing or pending. Pendent lite is the

ablative absolute of lis pendent.

Bouvier, therefore, very properly defines lis pendent to be a pending suit, viz., ""pending the continuance of an action while litigation continues.

Pendent lite means during the tendency of a suit. Lis is defined as a suit, action, controversy or dispute, Res is the subject matter, or the thing

involved in the suit. It usually is tangible property; but it may be a property or a personal right. The commencement of lis pendent is the initial point

of time at which the Court first acquires jurisdiction of the res.

The end of lis pendent is that terminal point of time at which the court ceases to have jurisdiction of the res. From the commencement to the end of

lis pendent the res may be said to be res litigious, which denotes the litigated or contested condition or quality of the res. This character of the res

remains fixed during the tendency of the suit.

Lis pendent, notice lis pendent, the rule lie pendent and notice of lis pendent are synonymous terms,

The history of this doctrine of Lis pendent has been traced by Bennett and his conclusion is that lis pendent is derived from the Reman law. By

the Roman or civil law it was provided that a thing concerning which there is a controversy is prohibited, during the suit, from being alienated. (Rem

de qua controversial prohibimur in a aerum dedicate). It was in force with slight modification as part of the body of civil or Roman Law Thus both

in Spanish law as well as in the laws of Scotland, this doctrine of lis pendent forms part of the body of those laws. In fact it has been transplanted

into the jurisprudence of the countries of the Continent of Europe. In England though the germ of the law of lis pendent was inoculated into its

jurisprudence from the Roman stock, Lord Dacon in his Rules or Ordinances (101 in number) made in 1618 for the Government of proceedings

and the better administration of justice in the Court of Chancery, embodied the doctrine of Us pendent as his 12th rule, Foot Note :-Text of

Ordinance : No decree beneath any one that cometh in bona fide by conveyance from the defendant before the bill exhibited; and is made no party

either by bill or by order. But where he comes in pendent lite and while the suit is in full prosecution and without any color of allowance or privacy

of the Court there the decree regularly beneath. But if there were any intermission of suit or the court were made acquainted with the conveyance

the Court is to give order upon the special matter according to Justice."" It has been subsequently developed and the leading case on the subject it

Bellamy v. Sabine (1). Being a rule of the English Chancery Courts, it came to be in force in the United States of America wherever statutes have

not been passed modifying the common law on the subject.

See also 38 Corpus Juris (The American Law Book Co.) P. 4 and foll. Definition, Nature and Source of Doctrine of Lis Pendent.

The principle of the doctrine of lis pendent is set out in A. K. Ray''s Transfer of Property Act (7th Edition) at page 177 as follows :

The section (S. 52) is based on the well-known maxim, pendent lite nail innovator, during litigation nothing new should be introduced. The law

does not allow either of the litigant parties to transfer to others, pending the litigation, rights to the property in dispute so as to prejudice the

opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right of a particular estate, the necessities of mankind

require that the decision of the Court in the suit shall be binding not only on the litigant parties, but also on those who derive title under them by

alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no

certainty that the litigation would ever come to an end. So, it is not correct to speak of lis pendent as affecting a purchaser through the doctrine of

notice. This rule is not founded on the ground of notice, hut is based on the broad principle that interminable litigation might be the consequence, if

any of the parties pending suit is allowed to alienate in favour of a third party. The law will not allow an inter meddler with outstanding disputes to

say that he did not know his rights. S. 100 does not over-ride S. 52. The doctrine of lis pendent, however, applies only to orders appropriate to

the suit having regard to the nature of the property involved and the nature of the proceedings. Only those orders will have such operation as relate

to rights which the parties claim or might have claimed in the property involved in the suit.

The position contained in the section is like res judicata inapplicable between Persies to the suit who are ranged on the same Side and between

whom there is no issue for adjudication.

The principle on which the doctrine has been rested in England is explained in the leading case, Bellamy v. Sabins 44 L.R. 342 where Turner, L.

J. said :

It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation-that it would plainly be

impossible that an action or suit could be brought to a successful termination, if alienations Pendent lite were permitted to prevail. The plaintiff

would be liable in every case to be defeated by the defendant''s alienating before the judgment or decree, and would be driven to commence his

proceedings de novo, subject again to be defeated by the same course of proceeding.

Lord Cranworth in the same case explained that the doctrine did not rest on the ground of notice. The learned judge said :

It is scarcely correct to speak of lis pendent as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts

often so describe its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others,

pending the litigation rights to the property in dispute, so as to prejudice the opposite party.

This judgment was quoted and followed by the Privy Council in Faiyaz Husain Khan v. Prag Narain I. L. R. 29 All. 339 which is the leading case

on the doctrine of Us pendent in India.

The doctrine of lis Pendent practiced in America as a common law doctrine, is stated in 34 American Jurisprudence at page 361 and following

as follows:

While it is a settled general rule that one who is not a party to a suit Connor be affected by the judgment rendered there in this rule, like others, has

its exception; and the authorities agree that whoever purchases or acquires an internet in property that is involved in pending list gabion stands in

the same position as his vendor, whether he purchased for a valuable consideration or not, and taken it subject to any judgment or decree that

mass be rendered. In other words, as the Supreme court has pointed out, it is a recognized principle that all persons contemplating the acquisition

of property are bound to take notice of an action involving the title, '' and will, on their peril, purchase the same from any of the parted to the suit.

The doctrine is pun gently summarized in the legal maxim, ''pendent lite nihilinnovetur'', and the theory underlying it is that once a court has taken

cognizance of a controversy, it should be impossible for any of the parties to interfere with consummation of the judgment at any ad interim

transfer, encumbrance, or change of possession (Maehenzie v. Engellard and Sene 266 O. S. 131=69 L. C. 205; Lamb v. Gremer, 285 V. S.

217; Presidio County v. Noel Voung, 242 V. 8. 58; Meihn v. Modi (sic) 131 V. S. 352; Warrnd Goundit Marey 97 V. 8. 96; Eyster v. Golf (sic)

521 : Lawyers Atckerli. 283 V. S. 295 Lacassagns v. Chapius. 144 V. S. 119; Sceonba v. sleele. 61 V. S. `84)

Since the doctrine under consideration is admitted to be harsh and to be justifiable only on the ground that Individual rights must at times be

mads to yield to rules formulated for the general convenience, it is by no means favorite of the Courts; and, as a general rule, they will construe it

strictly and decline to extend its operation unless it is strictly necessary. Thus, while it has sometimes been said that a Pendent lite purchaser ''takes

nothing,'' it is generally held that the rule to not intended to nullify transfers or prevents sales of property, but merely to bold property within the

jurisdiction and control of the Court pending determination of the controversy, thereby preventing third persons from acquiring such interests

therein as would preclude giving effect to the judgment.

See also Honourable Justice Story (sometime one of the Justices of the Supreme Court : U. S. A ): Equity Jurisprudence ( Third English Edition

(1920) page 166 (Sa. 405 to 407).

Where there is a real and fair purchase without any notice the rule may operate very hardly. But it is rule founded, upon a great public policy, for

otherwise alienation made during an action'' might defeat its whole purpose and there would be no end to litigation.

The scope of the clauses comprised in S. 52 of the Transfer of Property Act next deserves out attention. ""During the pungency"" means during

the pungency for determination of the suit in a Court of Justice. No suit can be said to be pending which has not been instituted, although the

claimant may have used efforts to bring about the suit. From the time of institution up to its final settlement in execution, a suit must be regarded as

pending.

Having authority'''' means that the suit must be pending in a Court of competent jurisdiction in India, i.e., Court must have jurisdiction to grant the

relief claimed. The words are used in the same sense as in the Code of Civil Procedure, Ss. 12 and 13.

Any suit or proceeding."" Under the old law the suit or proceeding must have been contentious; but it was even then held that that term was used in

opposition to a friendly suit. The only suit now excluded is a collusive suit.

The term ''''Collusion"" as construed by our Courts has been set out in the standard commentaries on the Transfer of Property Act as follows:

Darashaw Jivaji Vakil in his Commentaries on the Transfer of Property Act (1938) at page 308 :

To attract the application of the section the suit or proceeding relied upon must not be collusive. The fight between the parties must not be sham. A

friendly suit in which there is no contest and the decree declares rights on which the parties are in agreement is collusive. A suit may be collusive

either in its inception or in an honest suit there may be a collusive decree.

Sir H. S. Gour''s Law of Transfer (Seventh Edition) Vol-1, page 588

The essential of the doctrine is that Where a proceeding before a court exercising jurisdiction is honestly brought to a termination in one of the

modes which the law permits it to be determined by, and a decision of the court is obtained, such decision is binding upon all persons who claim

title by virtue of a transfer pending the litigation and there is no reason, therefore, for attaching greater efficacy to a decision arrived at after actual

contest than to decisions arrived at otherwise. Moreover, it would have set an embargo on all compromises if they were excluded from the salutary

protection of the rule for no plaintiff would be willing to risk a compromise if by so doing he would set the other party at liberty to place the

property beyond his reach.

Mulla''s Transfer of Property Act. 4th Edition, page 227 :

A collusive suit is not a real suit at all, not a battle, but a Sham fight. A suit may he collusive in its every inception, or a decree may be obtained by

collusion in a suit which was honestly begun. When the parties to a suit entered into an agreement for the express purpose of defeating the rights of

a transferee and obtained a decree in terms of the agreement, the rule of lis pendent did not apply.

A. K. Ray''s Transfer of Property Act (7th Edition) page 185 :

A decision obtained by fraud or collusion in the pending suit will not affect the rights of a transferee pendent lite. This has always been the law,

even before the amendment of the section and the insertion of the Explanation. The doctrine of lis pendent applies to a suit which ends in a

compromise or consent decree, if it is not collusive. It is immaterial how the decree is obtained in that suit, whether after contest or by compromise,

and it is immaterial whether the decree is right or wrong. It is beyond the competence of the Court invited to apply the doctrine of its Pendent to sit

in judgment on the previous decree.

A. I. R. Commentaries in the Transfer of Property Act (3rd Edition) page 713:

A collusive suit is not a real suit at all and the doctrine of lis, pendent does not apply to such suits.........But though a collusive suit does not operate

as lis pendent a decree passed therein may be binding on the actual parties to the suit.

''''Proceeding"" includes an execution proceeding, and the term ""immovable property"" shows that the doctrine of lis pen dens applies only to cases

where immovable property is the subject-matter of the suit. Where movable property is in dispute, a protecting order from Court must be obtained

under O. 39, R. 1 , Code of Civil Procedure. ""Directly and specifically in question"" emphasizes that the subject-matter must be clearly and

pointedly in question. As Bennett in his work on lis pendent says :

It may be said in general that a lis Pendent will be created where the property involved in suit is described either by such definite and technically

legal description, that its identity can be made out by the description alone or where there is such a general description of its character, or status,

and by such reference that upon enquiry the identity of the property involved in litigation can be ascertained.

The nature of the suit might be merely declaratory or for khas possession of the property is therein specified and is directly in question. ""Suit'''' is a

proceeding which terminates in a decree and the proceeding mast refer to a civil proceeding, for in a criminal proceeding the Courts are not

empowered to determine the rights between parties. The words ""transferred or otherwise dealt with"" are sufficiently wide to embrace a case of a

partition pendent lite prejudicing the right of a litigant. ""Parties to the suit"" : The rule affects only alienations made by one of the parties to the suit

and not strangers or persons claiming by a title paramount to the parties to the suit "" So as to affect the rights under any decree..."" means that the

transfer is not absolutely void but only inoperative as against the parties to the suit affected by it. ""Any other party thereto ""does not mean only any

opposite party or any party who has opposing interest, the words being unconditional "" Order'''' means those orders which are appropriate to the

suit having regard to the nature of the property involved and nature of the proceedings. ""Except under the authority of the Court"" If a transfer is to

be made free from defects this clause authorizes the parties to apply to the Court before whom the suit or proceeding is pending. The incapacity

imposed by the rule is personal being restricted to the parties to the suit or proceeding and not only actual parties but those pro forma added are

subject to the rule Not only the defendant but the plaintiff as well is bound by it. These are restrictions of questionable policy, but affords salutary

protection to the litigating parties. As the section bars the ordinary rights of transfers, it must be strictly construed.

To sum up, in the language of Pal, J. in Hiranya Bhusan Mukherjee and Others Vs. Gouri Dutt Maharaj and Others,

The requirements of the section are: (1) the penance of a suit, (2) non collusive character of the suit, (3) any right to immovable property being in

question in that suit (being in question directly and specifically), (4) the other party (other than the party making the transfer pendent lite having

some right under the decree in that suit. The consequence of the doctrine is that the transaction Pendent lite shall not be allowed to affect the right

under the decree.

The broad purpose of S. 52 of the Transfer of Property Act is to maintain the status quo unaffected by the act of any party to the litigation pending

its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the

other in bona fide proceedings. To apply such test is to misconceives the object of the enactment. Veeraraghava Reddi, In re, A. I. R. 1921 Mad.

Venkatarama Iyer A. I. R. 1924 Mad. 449.

The relevant Madras decisions are :-See P. Rajagopala Chetty Vs. A. Kesava Pillai and Others, Kolandavelu v. Sowbagiyammal, AIR 1945

Mad. 350; Vedachari In re, 45 M. E. J.825; Krishnayya v. Mallayya, 34 M. L. J. 263; Punithavelu v. Bhashyam. 23 Mad; 406; Gurn Basappa v.

Santappa, 48 M. L. J. 496; Pathumedammal v. Nanjappa. AIR 1939 Mad. 275; Nalla Kumara v. Papayi, 1945 Mad. 219 : Periyamurugappan v.

Manioka, 49 M. L.J. 68; Annamalai v. Mayandi. 29 Mad. 426 (F.B.): Venkatacholamian, In re. 1942 Mad. 24; Velayudha In re 38 L.W.

880=1933 M. W. N. 1398; Verjindre Muthu Pillai v. Mayanadan, 1920 M. W. N. 299=39 M. L. J. 456; Jaganath Koni v. Ramachandra Naidu,

1936 Med. 580 Muniswami v. Dakshinamoogthy, 5 Mad. 371; Varden Seth v. Appmdi 6 M.R.C.R. 75; Manuel, In re, 7 M. H: O. R. fes; ''cand

pathi v. Sadaswayya, 9 Mad.196..

Bearing these principles in mind, if we examine the fact of this case, we find that it has been established by the elaborate analysis of the oral and

documentary evidence in this case made by the learned Subordinate judge and the learned District Judge in paragraph 9 of their respective

judgments, that the decree in O. S. No. 31 of 1950 has been obtained collusively .These concurrent findings of fact based on overwhelming and

unassailable evidence are binding on me. In fact nothing was placed before me to come to a different con elusion. It is true that the learned District

Judge has gone one step further than the learned Subordinate Judge in considering that the collusion began even before the filing of the suit,

whereas the learned Subordinate Judge has demonstrated that the collusion has positively begun after the institution of the suit and before the

passing of the decree therein. I have already pointed out in the extracts given above that the collusion contemplated in S. 52 of the Transfer of

Property Act need not be at the inception but might well develop during the tendency of the proceedings. Consequently, though otherwise the

requirements under S. 52 have been made out in this case by reason of this collusion, that section will not apply. Therefore, the conclusions of both

the Courts below dismissing the plaintiffs'' suit and the appeal there from are irreproachable. This second appeal is dismissed with costs.