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HIGH COURT OF CALCUTTA
Guha Ray
INDU BHUSHAN MITRA - Appellant
Versus
SUDHAKAR CHOUDHURY - Respondent
A. F. A. D. 568 Of 1949
Decided On : APRIL 09, 1956
DEED OF SETTLEMENT - VALIDITY - LIS PENDENS - ESTOPPEL - REOPENING OF MORTGAGE DECREE - LIMITATION - INDIAN SOLDIERS (LITIGATION) ACT, SECTION 11.
Fact of the Case:
Bholanath executed a mortgage in favour of Pravash, which was assigned to Sudhakar. Sudhakar filed a mortgage suit against Bholanath and obtained a decree. The disputed homestead was sold in execution of the decree and purchased by Sudhakar. Bholanath executed a deed of settlement in favour of his sons, except Bankim, but later instituted a suit to set aside the deed of settlement. An amicable settlement was reached between Bholanath and his sons, except Bankim, and the deed of settlement was cancelled. Bholanath executed a second deed of settlement in favour of Bankim and Sudhir. The plaintiff, one of Bholanath's sons, filed a suit for confirmation of his possession in the disputed homestead, or in the alternative, for recovery of joint possession on declaration of his 1/6th share in the same. He also sought to reopen the mortgage decree and for a declaration that defendants 2 and 3 were mere trustees for him regarding the said share.
Finding of the Court:
1. The second deed of settlement was bona fide and acted upon. 2. It was not hit by the doctrine of lis pendens. 3. Defendants 2 and 3 acquired good title to the disputed property under it for themselves and not on behalf of their brothers. 4. The plaintiff had no locus standi to have the mortgage decree reopened as Bholanath's interest in the property devolved on defendants 2 and 3 to the exclusion of the rest of his sons, including the plaintiff. 5. The plaintiff's suit as far as it related to the reopening of the decree u/s. 36 of the West. Bengal Money Lenders Act was not barred by limitation.
Issues: 1. Whether the second deed of settlement was valid and operative? 2. Whether the second deed of settlement was hit by the doctrine of lis pendens? 3. Whether defendants 2 and 3 acquired good title to the disputed property under the second deed of settlement? 4. Whether the plaintiff had locus standi to have the mortgage decree reopened? 5. Whether the plaintiff's suit as far as it related to the reopening of the decree u/s. 36 of the West. Bengal Money Lenders Act was barred by limitation?
Ratio Decidendi: 1. The second deed of settlement was executed before the first deed of settlement was set aside, and it was for consideration. Therefore, it was valid and operative under Section 43 of the Transfer of Property Act. 2. The doctrine of lis pendens does not mean that a transfer pendente lite is either illegal or void. It is only voidable to the extent that it affects the rights of the party who obtains the decree or an order in the pending litigation and that at the instance of that party only and not of any other party. 3. Defendants 2 and 3 acquired good title to the disputed property under the second deed of settlement as they were Bholanath's successors-in-interest, as far as the debt was concerned, and they purchased the property from Sudhakar, the decree-holder auction-purchaser. 4. The plaintiff had no locus standi to have the mortgage decree reopened as Bholanath had before his death parted with his interest in the disputed property, in favour of defendants 2 and 3 by a deed of settlement which was perfectly "valid and operative and which was duly acted upon. 5. The plaintiff's suit as far as it related to the reopening of the decree u/s. 36 of the West. Bengal Money Lenders Act was not barred by limitation as he was entitled to a deduction of the period during which he served under special conditions under Section 11 of the Indian Soldiers (Litigation) Act.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS second appeal by the plaintiff arises from a suit instituted by him for confirmation of his possession in the disputed homestead measuring 6 kattas 12 chattaks with a pucca structure thereon which admittedly formed the ancestral dwelling house of the family or in the alternative for recovery of joint possession on declaration of his 1/6th share in the same and in case it transpired that the defendants 2 and 3 had purchased the property, for a declaration that they were mere trustees for him regarding the said share and for re-opening the decree passed in Title Suit it No. 179 of 1938 and for passing a new decree granting the plaintiff easy instalments for payment of the decretal amount Under the new decree to be passed.
( 2 ) THE disputed homestead was the ancestral homestead of the family. Bholanath Mitra, the father of the plaintiff, had 6 sons, Bireswar, defendant No. 4, Pashupati, defendant No. 5, Sudhir, defendant No. 3, Bankim, defendant No. 2, Indu Bhusan, plaintiff, and Surya, defendant No. 6. Defendant No. 1 Sudhakar is the brother or the wife of Bankim, defendant No. 2. Bholanath executed as far back as the 1st of December 1930, a mortgage, Ex. 3 in favour of Pravash Chandra Ghosh to secure the payment of a loan of Rs. 400/- only. Pravash assigned this mortgage to Sudhakar, defendant No. 1 on 24-11-1937. Sudhakar as the assignee of the mortgage filed against Bholanah a mortgage suit and this suit was numbered as Mortgage Suit No. 179 of 1938. Interest was claimed at 12 per cent. per annum and the whole claim was laid at Rs. 722/ -. Although Bholanath filed a written statement he did not ultimately contest the suit and on 5-5-1939 it was decreed ex parte in a preliminary form, This decree was made final on 15-6-1939 and the execution case, viz. , 343 of 1939 followed and the 'homestead in question was put up to sale in execution of the mortgage decree and purchased by the decree-holder Sudhakar on 22-11-1939. This mortgage sale was confirmed on 19-12-1941. On 22-12-1941, that is, only 3 days after the confirmation of the mortgage sale Bholanath died. On 24-7-1942 the sale certificate was granted to Sudhakar and on 6-8-3942 Sudhakar applied for substituting the 6 sons of Bholanath in the execution case and giving delivery as against all of them. This application is Ex. 16a. On 25-6-1s43, Sudhakar, the decree-holder auction-purchaser and defendant No. 1 took delivery of possession of the property and the report of the peon giving delivery of possession Ex. 8. On 24-2-1. 544 Sudhakar executed, a kobala Ex. 4a in favour of defendants 2 and 3 in respect of the disputed property and there is a recital in this deed that he was transferring the property according to the previous compromise. After Bholanath's death all his sons were added in the execution proceedings so that before the delivery of possession was taken all the sons of Bholanath including the present plaintiff were on the record as representatives of the judgment-debtor.
( 3 ) BEFORE however, the mortgage suit was instituted in 1938 Bholanath executed a deed o settlement Ex. 5 on 30-11-1937. By this deed of settlement, he gave the disputed house to all his eons except defendant No. 2 Bankim. Scarcely three months had elapsed from the execution of this deed of settlement when Bholanath himself Instituted a suit against the sons in whose favour he had executed the deed of settlement for setting aside this deed of settlement. This suit was instituted on 5-12-1937 and is Suit No. 256 of 1937. On 16-1-1939 there was an amicable settlement; between Bholanath on the one hand and those of his sons who were defendants in Suit No. 256 of 1937, that is, all the sons except defendant No. 2 Bankim. This amicable settlement is Ex. 12 and Clause It was filed on 16-1-1939. For the purpose of this litigation only two of its terms are relevant. The first is that if the plaintiff deposits in Court within 7 days of the solenama, that is, by 23-1-1939 a su
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