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2005 Supreme(Kar) 550
Karnataka High Court
Lalitha Kariappa Rai - Appellant
Versus
Sanjeevl - Respondent
Decided On : 09-13-05
R.S.A. : 732 of 2000
A.KRISHNA BHAT, S.P.SHANKAR
The main legal principle established in the judgment is the binding nature of a charge on immovable property, as governed by Section 100 of the Transfer of Property Act and the principle of lis pendens, on a bona fide purchaser in a Court auction.
Headnote:
charge - enforcement of annuity - Transfer of Property Act, Section 100 - The court discussed the applicability of Section 100 of the Transfer of Property Act and its impact on the enforcement of annuity as a charge on the property. The court considered the rights of the auction-purchaser and the principle of lis pendens in determining the binding nature of the charge on the property.
Fact of the Case:
The plaintiffs filed a suit to enforce charge on the B schedule property for recovery of annuity and future interest. The defendants contested the suit, claiming that the property vested in the Government and that the suit was barred by limitation. The trial court decreed the suit, but the appellate court dismissed the appeal. The substantial question of law raised was whether the respondent, a bona fide purchaser in a Court auction, was bound by the charge created on the property.
Finding of the Court:
The court reversed the findings of the lower courts, holding that the respondent, as an auction-purchaser, was bound by the charge on the property. It emphasized the applicability of Section 100 of the Transfer of Property Act and the principle of lis pendens in determining the enforceability of the charge against the respondent.
Issues: The main issue was whether the respondent, as a bona fide purchaser in a Court auction, was bound by the charge created on the property. The court also considered the applicability of Section 100 of the Transfer of Property Act and the principle of lis pendens in the context of the case.
Ratio Decidendi: The court's decision was based on the interpretation of Section 100 of the Transfer of Property Act and the principle of lis pendens. It held that the respondent, as an auction-purchaser, was bound by the charge on the property, emphasizing that the purchase of the property was subject to the result of the litigation and the rights of the parties to the suit.
Final Decision: The appeal was allowed in part, setting aside the judgment and decree of the lower courts. The plaintiffs were entitled to recover the decretal amount from the respondents, and each party was to bear their own costs.
( 2 ) ACCORDING to the plaintiffs, partition deed dated 5-9-1949 was effected in the family of Seethu Hengsu, Subbakke, Kunhappa rai and Chennamma and B schedule properties along with other properties were allotted to the share of Kunhappa Rai who settled the same in favour of the first defendant and on subsequent partition, property now vests with the defendants. As per the 1949 partition, allottees of B schedule properties were liable to pay annuity of 20 muras of rice to the Branch of Seethu Hengsu mother-in-law of the plaintiff No. 1 payable on charge of B schedule properties on or before 12 of April every year. In the subsequent partition in the family of Seethu hengsu made on 18-7-1968 the above rights stood allotted to the share of Seethu Hengsu and as such, she was exclusively entitled to collect owelty on charge of B schedule plot. Sethu Hengsu left a Will behind her dated 5-2-1981 in favour of Kariappa Rai. the husband of the first plaintiff and thereafter, she died on 6-5-1984. In view of the Will executed by late Seethu Hengsu in favour of kariappa Rai, he was absolutely entitled to recover annuity from the allottees of B schedule property. On the death of Kariappa rai on 6-11-84, plaintiffs filed a suit for recovery of annunities and the suit was contested by the defendants. In the written statement, they have denied the claim of the plaintiffs. It is stated that the suit property vested in the Government and occupancy rights were conferred on the occupants and rights of the plaitiffs stood discharged and plaintiffs, had no more existing right on the charge of the claim over the property. Further, it is stated that in view of the land allotted to the defendants due to operation of law, plaintiffs lost their rights and also there was reduction to the extent of land allotted to the share of the defendants. Further, it is stated that suit in O. S. No. 18/1981 filed before the date of grant of occupancy rights, plaintiffs were not entitled to claim on the basis of the decree passed in O. S. No. 18/1981. Further contending that suit is barred by limitation, it was resisted. Based on the pleadings as many as 15 issues were raised. After the evidence was let in and after hearing the parties, the trial Court decreed the suit with costs and thereby directed the defendants to pay a sum of Rs. 16,848/- with interest of Rs. 8442/- from the suit till payment and created a charge on the B Schedule properties excluding lands on which occupancy rights were conferred as per Ex. P. 11. Being aggrieved by the same, appeal was preferred. After the preliminary decree was passed by the Munsiff Puttur, on 16-10-1989, the FDP proceedings were initiated in FDP. No. 5/90. The FDP proceedings were filed by the plaintiffs. In FDP No. 68/86 arising out of O. S. No. 18/1981 suit property was sold in the Court auction, wherein, one balakrishna Rai purchased the suit property on 30-3-1988. Later said Balakrishna rai got himself impleaded in FDP No. 5/90 which were filed by the plaintiffs, as 9th respondent. Respondents 1 to 7 in FDP. No. 5/90 remained ex parte and respondent No. 6 however was dead. 9th respondent who was the auction-purchaser contested the fdp proceedings. According to him, he was not aware of O. S. No. 122/89 filed and he was not a party to it and was not aware of the preliminary decree drawn therein. He stated that before the said suit was filed, he had purchased the schedule properties in court auction on 30
