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SUPREME COURT OF INDIA
(26th April 1956)
S.R. DAS, C.J.I., VENKATARAMA AYYAR AND IMAM, JJ.
Nagubai Ammal and others, Appellants
Versus
B. Shama Rao and others, Respondents.
Civil Appeal No. 216 of 1953.
Advocates appeared
Mr. K. S. Krishnaswami Iyengar, Senior Advocate (Mr. M. S. K. Sastri, Advocate, with him), for Appellants; Mr. R. Ganapathy Iyer and Mr. K. R. Krishnaswamy, Advocates, for Respondent No. 1.
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– Held that it is a suit in which right to immoveable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge – See decision in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 = 1956 SCA 959 = 1956 SCA 655 = 1956 SCR 451.
Key Points: - The lis pendens rule under Section 52, TP Act can extinguish a later sale when a prior decree and sale are involved, as held that Devamma’s purchase in 1928 was effected subject to the rights under the decree and that the title of Dr. Nanjunda Rao was extinguished by the court sale under the maintenance decree (!) (!) (!) (!) (!) (!) . - Distinction between collusive and fraudulent proceedings: collusive means a sham contest between parties; fraudulent means the claim is true but procured by fraud against the court; this distinction affects whether lis pendens applies and the validity of the sale under Section 52 (!) (!) (!) . - Admissions by Abdul Huq and others regarding collusiveness do not automatically prove collusion; burden of proof can shift, and the evidence may suffice to discharge the burden showing the proceedings were not collusive (!) (!) (!) (!) (!) . - Official Receiver not being a party to the sale does not render the sale invalid; pendente lite transfers may be valid between parties, and the Official Receiver’s nonjoinder does not defeat the purchaser pendente lite’s title against others (!) (!) (!) . - The appellant’s rights as purchasers of the equity of redemption and their right to redeem the mortgage are considered in light of lis pendens; the court held the sale dated 2-8-1928 was extinguished under Section 52 by the court sale (!) (!) (!) . - Limitation issues were considered but ultimately found not to defeat the action since the relevant possession and sale dates place the suit within the permissible period; possession by adverse possession could not override the prior mortgagee’s rights (!) (!) . - The appeal was dismissed with costs; the judgment confirms the extinguishment of the appellants’ title under Section 52, TP Act (!) (!) .
Judgment
VENKATARAMA AYYAR, J. : This appeal arises out of a suit instituted by one Krishna Rao, since deceased, and now represented by his son and heir, the respondent herein, for a declaration of his title to certain building sites situate in Bangalore in the State of Mysore, and for consequential reliefs. These properties belonged to one Munuswami, who died leaving him surviving his third wife Chellammal, three sons by his predeceased wives, Keshvananda, Madhavananda and Brahmananda, and three minor daughters, Shankaramma Srikantamma and Devamma.
On 1-9-1918 the three brothers executed a usufructuary mortgage for Rs. 16,000 in favour of one Abdul Huq over a bungalow and vacant sites including the properties concerned in this litigation. A period of three years was fixed for redemption. There was a case back of the properties by the mortgagee to the mortgagors on 3-9-1918, and it was also for a period of three years. On 6-9-1918 the three brothers effected a partition under a deed, Ex. K, which provided inter alia that they were to pay each of sum of Rs. 8 per, mensem of their step mother Chellammal, for her maintenance, and that their stepsisters, should be under their protection.
2. On 6-6-1919 Challammal presented a plaint in forma pauperis claiming maintenance and praying that it might be charged on the properties specified in the plaint. That was Misc. Case No. 377 of 1918-19. At the same time, she also presented as the next friend of her minor daughters, Srikantamma and Devamma, two plaints in forma pauperis, Misc. Cases Nos. 378 and 379 of 1918-19 claiming maintenance and marriage expenses for them, and praying that the amounts decreed might be charged on the schedule-mentioned properties. The properties which are involved in this suit are included in item 8 in schedule A annexed to all the three plaints.
On 17-6-1920 permission to sue in forma pauperis was granted in all three cases, and they were registered as Suits Nos. 98 to 100 of 1919-20. We are concerned in this appeal with only one of them, the suit of Devamma which was Misc. Case No. 379 of 1918-19 subsequently registered as Suit No. 100 of 1919-20.
3. The suit were contested, and deceased after trial on 12-12-1921. The decree in O. S. No. 100 of 1919-20 directed the defendants each to pay to the plaintiff a sum of Rs. 6 per mensem for maintenance until her marriage and Rs. 1,500 for marriage expenses, and the payment of the amount was made a first charge on the properties. In execution of this decree, the properties with which are now concerned, were sold on 2-8-1928 and purchased by Devamma, the decree-holder. A sale certificate was issued to her on 21-11-1930 (Ex. J-5).
Proceedings were also taken in execution of the decrees obtained by Chellammal and Srikantamma and of one Appalaraju, and all the properties comprised in the mortgage were sold and purchased by third parties. It must be mentioned that all the three-brothers were adjudicated insolvents on their own application, Brahmananda by an order dated 23-3-1923 in Insolvency Case No. 7 of 1921-22 and Keshvananda and Madhavananda by an order dated 19-2-1926 in Insolvency Case No. 4 of 1925-26. It also appears from the evidence of D. W. 5 that at about this time all of them left the place.
4. While these proceedings, were going on, Abdul Huq the mortgagee, filed on 16-8-1921. O. S. No. 27 of 1921-22 against Keshvananda and his two brothers for recovery of arrears of rent due by them under the lease deed and obtained a decree on 21-10-1921 but was unable to realise anything in execution thereof, and the execution petition was finally dismissed on 22-1-1926. He then filed a second suit against the mortgagors, O. S. No. 86 of 1931-32 for arrears of rent for a period subsequent to that covered by the decree in O. S. No. 27 of 1921-22 and for possession of the properties on the basis of the lease dated 3-9-1918, and obtained a decree on 22-3-1932 but was unable to get possession as the properties were in the occupat
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