Nallakumara Goundan vs Pappayi Ammal and Another

Somayya, J.—The second defendant in a suit for maintenance brought by the plaintiff first respondent is the appellant in this Court. The first

respondent is the widow of one Chinnappa Goundan. Chinnappa Goundan and Muthuswami were brothers. They became divided under a

partition deed Ex. D in the year 1919. At that time, their mother and grandmother and an aunt of theirs were alive. The properties now in suit and a

house were set apart for the maintenance of the three ladies to be enjoyed by them for their life. Chinnappa, the plaintiff''s husband, executed a will

in favour of his brother Muthuswami. He directed the legatee to pay Rs. 17 to 20 per month to his wife the plaintiff for her maintenance. The will

declared that if the legatee failed to pay the maintenance to his wife, she would have a right to recover it from the propsrties of Chinnappa

Goundan which remained in the hands of the first defendant''s father after paying his debts. It also provided that the land that was set apart at the

time of the partition for the maintenance of his mother and aunt should go to the legatee after their life. The plaintiff filed a suit in forma pauperis on

the 10th March, 1932, for maintenance against the first defendant''s father Muthuswami claiming a charge over six items of properties. These items

did not include the three items which had been set apart for the maintenance of the three ladies and which form the subject-matter of the present

suit. By a subsequent amendment, the widow was allowed to include the three items now in question and to claim a charge over these items as

well. The application for amendment I.A. No. 386 of 1932 to include the additional items was filed on the 22nd April, 1932, and it was ordered

on the 13th August, 1932. Muthuswami died in the beginning of May, 1932, and I.A. No. 421 of 1932 was filed on the 11th July, 1932, to

implead his son as his legal representative and it was ordered on the 6th August, 1932. After the death of Muthuswami and before the application

for adding his son as the legal representative, his son, the present first defendant, sold the three additional items and some other properties to the

second defendant for Rs. 4,750 by a sale deed dated the 9th June, 1932. Ultimately the suit ended in a decree by which maintenance was decreed

and made a charge on the items purchased by the second defendant. When the plaintiff attempted to execute her decree, she was met with

opposition and her execution petition was dismissed. Then she filed the suit out of which this second appeal arises for a declaration that she has a

right to execute the decree and to recover her decree amount from out of the suit properties. The suit was at first dismissed by the District Judge

on appeal on the ground that the maintenance decree was a charge decree, that no claim petition lay in execution of such a decree as there was no

attachment and that the order refusing execution against the properties could not be challenged by a suit under Order 21, Rule 63. The trial Court

had upheld the plaintiff''s right to execute the decree against the properties but on appeal the decree was reversed and the suit dismissed on the

ground mentioned above. The matter came before me in S.A. Nos. 124, 180 and 518 of 1941. I held that the suit might be treated as one for a

declaration of the plaintiff''s right to sell the properties in the hands of the second defendant in execution of her prior decree. The plaintiff had

preferred one second appeal and the first and second defendants had each preferred a second appeal. All of them attacked the judgment of the

District Court and all the appeals were allowed and the appeal was remanded for disposal on the question whether the plaintiff had a right to

proceed against the suit properties in realisation of the amount due to her under the prior decree. This time it came before another District Judge

and he upheld the right of the plaintiff to realise her decree amount from the half share of Chinnappa Goundan in the three items. This second

appeal is preferred by the second defendant who is the purchaser at a private sale from the first defendant on the 9th June, 1932.

The view taken by the lower appellate Court is that the purchase by the second defendant is affected by the doctrine of Us pendens and is

therefore subject to the rights which were declared under the decree in that suit. It is argued that this view is incorrect for two reasons : one is that

the vendor the first defendant was not a party to the suit on the 9th June, 1932, when the sale was made by him. It is only a sale by a party to a suit

that is affected by the doctrine of lis pendens enacted in Section 52 of the Transfer of Property Act. The second ground is that the three properties

now in suit had not become the subject-matter of the previous suit until the amendment was actually ordered which was on the 13th August, 1932.

Taking the latter point first, it is clear that the amendment application was filed on the 22nd April, 1932. The order made on the 13th August,

1932, will date back to the date of the application for amendment. No authority has been cited to show that where an application for amendment

seeking to include some more properties is later on ordered, it is the date of the order that determines the question of lis pendens. This question as

to what date an amendment order dates back, whether it is to the date of the application for amendment or to the date of suit has been considered

and it has been held that it relates back to the date of the amendment application, if not to the date of the suit itself. So far as the doctrine of lis

pendens is concerned, the proper view is that the order dates back to the date of the application for amendment. It is then that further Immovable

properties were sought to be impleaded in the suit. An alienation made prior to the application will not be affected, but from the date when the

application for amendment was made, it must be held that the question of lis pendens applies. The delay caused by the Court in ordering the

application ought not to prejudice the parties. An application for amendment is similar to the plaint. It is said that the defendants did not know-that

these properties were included until the amendment was ordered. But it would be seen that where in a plaint a right to immovable property is

claimed, the defendant may not know of the institution of the suit until summonses are served on him and still the doctrine of lis pendens has been

held to be applicable to an alienation made between the date of the suit and the date of the service of summons. This rule is based upon public

policy that if an alienation subsequent to the date of the plaint is allowed, the plaintiff will have to bring the alienee on record every time such an

alienation is made and there will be no end to litigation. It is in order to avoid that trouble the Legislature has enacted Section 52 of the Transfer of

Property Act and the matter is made clear that the doctrine of lis pendens applies to all alienations made from the date of the plaint itself. The

explanation added to the section by the amending Act of 1939 says:

For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint

or the institution of the proceeding in a Court of competent jurisdiction.

The next question is whether the sale was by a party to the suit. Section 52 in so far as it is relevant for this purpose says this:

During the pendency in any Court . of any suit or proceeding 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

It is very strenuously argued for the appellant that the sale in question was not made by a party to the suit. It is urged that on the 9th June, 1932,

the vendor the first defendant herein had not been made a party to the previous suit, and that therefore the sale by him was not by a party to the

suit. It is here necessary to observe that the properties are not joint family properties of the first defendant and his father Muthuswami. The half

share against which the decree under appeal gives the plaintiff a right to get her decree amount is the half share which the plaintiff''s husband

Ghinnappa Goundan had bequeathed to his brother Muthuswami. Therefore in the hands of Muthuswami, the suit properties were his self-acquired

properties on his death which occurred before the 9th June, 1932, but after the 22nd April, and the properties devolved on the first defendant as

the heir and legal representative of his father Muthuswami. Muthuswami was already a party to the suit. On my finding on the other point, there

was a lis commenced against Muthuswami and a right to Immovable properties was directly and specifically in question in the suit against

Muthuswami. On Muthuswami''s death, the plaintiff has three months to bring his legal representatives on record. If the argument advanced by the

appellant is accepted, it would follow that if the defendant in a suit relating to Immovable property dies, his legal representative can pass a good

title to an alienee provided it was made before an application for impleading the legal representative is filed. Such a result is, I think, wholly

opposed to the scheme of Section 52. The real answer to the argument is to be found in the rule that where the property devolved on another by

inheritance, the latter continues the legal persona of the deceased and that the property in the hands of the legal representative is subject to all the

rights available to third parties against the deceased. It is strictly the continuation of the persona of the deceased in the heirs. We must therefore

take it that though the alienation is made by the first defendant, it is really Muthuswami''s legal persona that made the sale in question. It was held

even prior to the amendment in 1929 that an alienation made by a party subsequent to the disposal of suit and before the presentation of an appeal

was effected by the doctrine of lis pendens. Now by the amending Act of 1929 it is made clear that the lis commences from the date of the plaint

and continues until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or

order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof.

The final decree includes an appeal and a further appeal. The section as originally enacted did not contain this explanation and even then it was

uniformly held that Section 52 applied even to an alienation which was made between the disposal of the suit in the first Court and the presentation

of an appeal to an appellate Court. The same principle should, I think, apply to a case where as here the original defendant died and the alienation

was made after his death and before the filing of the application to bring his legal representative on record. The suit must be deemed to be pending

against the legal persona of the deceased, i.e., against his legal representative and must be deemed to continue until at least the expiration of the

time limited by any law of limitation to bring him on record. Whether if an application is made long after the expiration of the time fixed for bringing

the legal representative on record and an alienation is made by the legal representative and later on the plaintiff in the action seeks to set aside the

abatement and to bring the legal representative on record and that is ordered, the doctrine of lis pendens applies or not does not arise and need not

be considered. There may be difficulties in such a case, but where the alienation is made within the time prescribed for bringing the legal

representative on record, it is a clear case and there can be no doubt whatever that the rule does apply. The effect of this will be that the execution

petition filed in the previous suit will stand revived and further orders will have to be made on that execution application. The executing Court will

on being apprised of the result of this litigation restore the execution petition to file and proceed to pass further orders in execution.

Another objection is that if the doctrine of lis pendens is held to apply in this case, the second defendant must be taken to be a representative of

the party to the previous suit and that therefore the order made in execution of the previous decree should have been challenged only by a direct

appeal and not by a separate suit. As the District Judge has pointed out this question ought to have been raised when the remand was made by this

Court on the former occasion. The point was raised before the District Judge after remand by this Court. It is too late for the appellant to raise this

question and I consider that the District Judge is right in disallowing this objection.

The second appeal fails and is dismissed with costs of the plaintiff first respondent. No leave.