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S. R. DASS, SYED JAFAR IMAM, T. L. VENKATARAMA AYYAR
Nagubai Ammal – Appellant
Versus
B. Snama Rao – Respondent
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.
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