Rajeswari Devi vs Bhutnath Mukhopadhay

Renupada Mukherjee, J.—This is an appeal by the Plaintiff and is directed against a judgment and decree passed by the Subordinate Judge, first court, Howrah, in Title Suit No. 40 of 1946. The suit was instituted in the trial court by Plaintiff Shrimati Rajeswari Devi for recovery of has possession of a plot of mourashi mokarari land measuring more or less 12 cottas upon declaation of her auction-purchased title thereto. The suit was contested by Bhutnath Mukherjee, Defendant No. 1, in his capacity as Receiver to the estate of deity Sri Sri Iswar Mahakal Jiew Thakur, and was dismissed by the trial court. So the Plaintiff has preferred this appeal.

The decision of the appeal turns on a question of law, viz., whether a certain purchase, dated September 2, 1929, is hit by the doctrine of lis pendens. It will be necessary to set out the following undisputed facts in order to understand the point of law involved in the case.

The disputed property described in the schedule of the plaint belonged at one time to one Jaharlal Nandi, father of Bipad Bhanjan Nandi, pro forma Defendant No. 6, in the trial court, in mourasi mokarari right. Jaharlal Nandi mortgaged this property along with two other items of properties with one Durga Prosad Sukul on Karticlc 23, 1332 B.S. for a foan of Rs. 1,000. This property was item 3 of the mortgage deed. ''The mortgage debt not having been paid, Durga Prosad Sukul''s heir and daughter, Shrimati Chinurani Debi, instituted Title Suit No. 503 of 1928 against Jaharlal Nandi in the second court of the Munsif at Howrah for enforcement of the mortgage. One Ram Nehar Singh was also made a party Defendant in that suit because he was a second mortgagee of some of the properties mortgaged with Durga Prosad. Chinurani and Jaharlal filed a joint petition of compromise (Ex. D) on September 2, 1929, whereby Chinurani released item 3 of the mortgage, that is, the disputed property of this suit, from the charge on receipt of Rs. 500 from her debtor Jaharlal who sold this property on the same day to Chandi Charan Banerjee and two other persons, Defendants Nos. 3 to 5 of the trial court (the name of Defendant No. 3 was subsequently, struck out from the plaint), in satisfaction of a prior mortgage in their favour and for a consideration of Rs. 5,000 out of which Rs. 505 only was received in cash by Jaharlal (vide, kabala, Ex. A(l)) The amount of Rs. 500 was paid to Chinurani from this sum of Rs. 505. The trial court instead of recording the above compromise dismissed the entire suit on December 12, 1929, as no evidence was adduced by Plaintiff Chinurani to show what was the value of the remaining two items of the mortgaged properties (vide judgment, Ex. C). An appeal was preferred by the Plaintiff and the appellate court by its judgment, dated October 6, 1931, set aside the order of the trial court and passed a decree in a preliminary form for the entire claim of the Plaintiff, directing that item 3 of the mortgage should be first put up to sale inasmuch as Defendant No. 2 was a subsequent mortgagee in respect of items 1 and 2 only of the mortgage and the Plaintiff could not release item 3 and throw the entire burden on the other two items to the detriment of Defendant No. 2 (vide judgment, Ex. 2). The compromise petition, filed in the trial court was totally ignored by the appellate court with the observation that-it was illegal.

Title Suit No. 503 of 1928 was later on transferred to the first court of the Munsif of Howrah and numbered as Title Suit No. 266 of 1932, and a final decree for sale was duly made on May 25, 1932 (vide final decree for sale, Ex. 7). Thereafter Chinurani assigned the decree in favour of one Jagarani Devi on August 3, 1934 (vide Ex. 6) and Jagarani purchased the disputed property in execution of that decree on March 13, 1936, the sale being confirmed on April 29, 1936 (vide sale certificate, Ex. 4). Jagarani''s interest devolved on Plaintiff Rajeswari Devi under a will, and the latter took delivery of possession through court in July, 1944 (vide order-sheet, ex, 1(c)). In the meantime Chandi Charan Banerjee and his two co-sharers who had purchased the disputed property.on September 2, 1929, sold their interest to one Jnanendra, Mohan Mukherjee by a kobala, dated April 29, 1930 (Ex. A). It is admitted that this purchase was made on behalf of the deity Sri Sri Iswar Mahakal Jew Thakur in the benami of Jnanendra. So the position is that the deity now represents the interest of Chandi Charan Banerjee and his co-sharers who purchased the disputed property during the pendency of Mortgage Suit 503 of 1928 and Plaintiff Rajeswari Devi is the successor-in-interest of Plaintiff decree-holder Chinurani of that suit. The present suit was instituted by Rajeswari Pevi on the allegation that Defendants Nos. 1 and 2 of this suit were resisting her possession and were not allowing her I to take actual possession of the disputed property. The question, therefore, arises whether the transfer in favour of Chandi Charan Banerjee and his co-sharers by Jaharlal, dated September 2, 1929, is hit by the doctrine of lis pendens and is ineffectual against the auction-purchase of the Plaintiff.

There can be no doubt that if the purchase of Chandi Charan Banerjee and his co-sharers mentioned above is hit by the doctrine of lis pendens then the auction-purchased title of the Plaintiff must prevail. Of course, Mr. Roy appearing on behalf of the contesting Respondent also contended that the title of the deity has matured by adverse possession for more than twelve years prior to the institution of the present suit. No issue on adverse possession was framed in the trial court, and the view which I am going to take on the application of the doctrine of lis pendens will make any decision on the question of adverse possession unnecessary.

The trial court has held that in view of the special circumstances of this case the doctrine of lis pendens has no application. This finding has been arrived at mainly on a consideration and construction of the solenama filed in court on September 2, 1929. Dr. Sen Gupta, appearing on behalf of the Appellant, contended that the construction put upon the solenama by the trial court was wrong and that the trial court''s finding that the kabala in question to which Chinurani was not a party was the result of an arrangement amongst three parties, viz., Chinurani, Jaharlal and the" Banerjee purchasers is incorrect and unsupported by facts. He further argued that Chinurani never gave any assurance directly to the purchaser that the disputed property would be released from mortgage, as has been found by the trial court, and that if she agreed in the petition of compromise to give such a release to Defendant Jaharlal, that compromise was totally ignored and brushed aside by the appellate court which decreed the mortgage claim of Chinurani in full. Dr. Sen Gupta, therefore, contended that the Banerjee purchasers, could not have taken the property by virtue of their purchase ''pendente lite to the prejudice of Chinurani and in contravention of the terms of the decree which was finally passed in the mortgage suit. This brings us to the doctrine of lis pendens which is embodied in Section 52 of the Transfer of Property Act. That section lays down in substance that during the pendency of any contentious suit or proceedings in any court in which any right to any immovable property is directly and specifically in question, the property cannot, except with the leave of the court, be transferred or otherwise dealt with by one party so as to affect the rights of any other party thereto under any decree or order which may ultimately be made in the suit or proceeding. It has been pertinently observed in a case in Tiloke Chand Surana and Anr. v. J.B. Beattie and Company (1925) 29 C.W.N. 953:

The doctrine is intended to prevent one party to a suit making an assignment inconsistent with the rights which may be established in the suit and which might require a farther party to be impleaded in order to make effectual the court''s decree.

Three cases were relied on by the trial court in coming to the conclusion that the transfer in the present case was not hit by the doctrine of lis pendens. The first of these three cases has already been mentioned by me, viz., the case reported in Tiloke Chand Surana and Anr. J.B. Beattie and Company ( 19210 C.W.N. 953. This case, however, does not apply to the facts of the present case. Although there are some observations at p. 964 of this report regarding the application of the doctrine of lis pendens, the real question decided in that case is that an arrangement between a mortgagor and his tenant for payment of future rent made after the creation of a mortgage will bind a person taking a transfer of the reversion unless he can show that he purchased for value without notice. There was no transfer of any property by the mortgagor after the creation of the mortgage, and so no question of application of the doctrine of lis pendens arose in this case.

The second case cited before the trial court is reported in Rai Benode Behari Bose Vs. Babu Hira Singh and Others, . It has been held in this case that if a transfer of a property by one party to a suit or proceeding pendente lite is acquiesced in by the other party or is for his benefit, Section 52 of the Transfer of Properly Act would have no application. In that case Binode Behari Bose put up some mortgaged property to sale in execution of a mortgage decree. The judgment-debtor obtained a postponement of the sale with the decree-holder''s consent and satisfied the decree by selling the property to one Hira Singh who advanced the money to the knowledge of the decree-holder. It was held in these circumstances that Hira Singh''s purchase would not be affected by the doetrine of lis pendens. The facts of the present case bear some close resemblance to the facts of Binode Behari Bose''s case. Here Chinurani had instituted the mortgage suit against Jaharlal. The latter sold one of the items of the mortgaged properties to Chandi Charan Banerjee and two other persons on September 2, 1929. The solenama filed by Chinurani and Jaharlal on the same day (Ex. D) shows that not only was Chinurani fully aware of the sale, but also she got Rs. 500 from out of the purchase money in part satisfaction of her claim and released a particular property sold to the Banerjee purchasers. The release not having been given in a registered deed and the solenama not having been recorded and accepted by the court, the purchasers or their successors-in-interest, the deity, cannot certainly found their title on this release. But the deity can very well urge that Chinurani having acquiesced in the sale and having got a substantial benefit from Chandi Banerjee and his co-sharers got a good title to the property unaffected by the final result of the suit. Section 52 of the Transfer of Property Act does not prevent or make illegal a transfer of a property during the pendency of a suit or proceeding, but it lays down that such a transfer would not affect or prejudice the right of any other party thereto under any decree or order vhich may ultimately be passed by the court. If, however, the transfer is acquiesced in by the other party and he receives a benefit under it then the very basis of the doctrine of lis pendens would be gone and the other party cannot be allowed later on to turn round and say that the transfer would not bind him being inconsistent with his rights obtained under the decree.

In the present case although Chinurani does not appear to have had any direct dealing with Chandi Charan Banerjee and his co-sharers, the solendmd to which she was a consenting party learly and conclusively shows that she acquiesced in the sale and Received a substantial benefit under it. That being the case, Section 52 of the Transfer of Property Act has no application and the purchase of Chandi Charan Banerjee and his co-sharers must prevail over the subsequent auction-purchase of Jagarani. Plaintiff''s predecessor, in execution of the mortgage decree.

The third case cited by the Respondent in the trial court is reported in Mangat Rai v. Dulichand (1933) 147 I.C. 932. This case is not of much use, because the decree-holder in this case virtually wanted to retain both the money deposited in court by a pendente lite purchaser and the property in suit. His conduct was found to be dishonest and it was held that the doctrine of election applied.

On behalf of the Appellant, Dr. Sen Gupta cited a case reported in Shyamlal v. Sohonlal ILR (1929) All. 290 and contended that on the principles laid down in that case it should be held that Chandi Charan Banerjee and his co-sharers were bound by the result of the mortgage suit of Chinurani. In the Allahabad case cited above one party to a suit mortgaged a certain property from out of some disputed properties during the pendency of an appeal in favour of a third party. The appeal was finally compromised between the contestants and the. particular property was divided half and half between them but the entire liability to pay the mortgage was taken over by the party other than the mortgagor In a suit brought by the mortgagee for enforcing his mortgage it was held that the half share of the mortgagor party only would be bound by the mortgage, but not the half share of the other party because the mortgagee could not touch this share which the other party had got under the terms of the decree. The promise of this party to take over the mortgage liability and to satisfy it was held to be a personal promise only. Further, this party had never acquiesced in the mortgage and had received no benefit under it, and so it was rightly held that his rights obtained under the decree would remain unaffected by the mortgage created during the pendency of the appeal. The fact that Chinurani had acquiesced in the transfer and had received benefit under it makes all the difference between the present case and the Allahabad case mentioned above.

From the foregoing observations it would be clear that the trial court has correctly decided that the doctrine of lis pendens has no application in the present case. The auction-purchase on which the Plaintiff''s claim is based will not, therefore, defeat the prior title of the deity represented by Respondent No. 1.

Mr. Boy, appearing on behalf of the contesting Respondent, also argued that it should be held on a consideration of the principles of estoppel that the Plaintiff who stood in the shoes of Chinurani could not claim the disputed property as against the deity standing in the place of the Banerjee purchasers. In view of my decision given on the question of lis pendens it would not be, necessary to consider the question of estoppel raised by Mr. Roy I may just mention in passing that the facts of this case do not attract the operation of estoppel, because there is no material on the record to show that either at the time when Jaharlal sold the disputed property to the Banerjee or at any time prior to such transfer Chinurani herself induced the Banerjee by any act or omission to believe that she would release the property in question from her mortgage. There was no direct or even indirect dealing, between Chinurani and the Banerjee purchasers, and so the principles of estoppel cannot have any application to the facts of the present case.

In the result, the appeal must fail. It is, therefore, dismissed with costs to the contesting Respondent.

Mookerjee, J.

I agree.