The main legal point established in the judgment is that the doctrine of lis pendens applies to compromise decrees in the absence of fraud or collusion.

Charles Arnold White, Kt., C.J.

1. In this reference the question for determination is whether the doctrine of lis pendens, as embodied in Section 52 of the Transfer of Property Act, applies when the suit during the pendency of which the transfer takes place is subsequently compromised and a decree is given in pursuance of the compromise; or, in other words, was the case of Vythinadayyan v. Subramanya I.L.R (1889) Mad. 439 rightly decided?

2. Section 52 of the Transfer of Property Act is in these terms:

During the active prosecution in any Court having authority in British India Chief Justice, or established beyond the limits of British India by the Governor-General in Council of a contentious suit or proceeding in which any right to Immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

3. I will deal first with the question of the construction of the section apart from the authorities.

4. In support of the view that the section did not apply in the case of a compromise decree, it was argued that the word contentious was introduced for the express purpose of excluding the operation of the doctrine of lis pendens when the decree was a decree by consent. I find myself quite unable to accept this view. A suit is either contentious or non-contentious, and the fact that there is a decree by consent cannot by a sort of relation back alter the nature and character of the suit. The word contentious as distinguished from voluntary, or common form, is used to describe the jurisdiction of the Courts whose powers were vested in the Court of Probate by the Probate Act, 1857. The expression "voluntary and contentious jurisdiction and authority" occurs in Sections 3 and 4 of that Act, and the practice of the Probate Division is governed by rules which distinguish between contentious and non-contentious business. I think the word contentious is used in Section 52 of the Transfer of Property Act in the sense in which it is used in the Probate Act and rules.

5. If the nature of the suit or proceeding is such that no contest is involved-as in probate common form business-the suit or proceeding is non-contentious. If a contest is involved it is contentious. I am quite prepared to accept the definition adopted by the Calcutta High Court in Upendra Chandra Singh v. Mohri Lal Marwari I.L.R (1904) Cal. 745. With reference to the authorities bearing upon the meaning of the words "contentious suits," their Lordships say (p. 752) "what we think may be gathered from these cases, how-ever, is that to constitute a suit contentious, it must be a suit, which upon the face of the proceedings would appear to involve some contention as to the right of one or other of the parties, in the Immovable property, which is claimed in the suit, and whether there is such a contention may be gathered from the plaint itself, or the defence of the defendant, when it is put in."

6. This definition is in accordance with the definition of "contention" contained in the explanation to Section 253-A of the Succession Act-"By contention is understood the appearance of any one in person, or by his recognized "agent, or by a pleader duly appointed to act on his behalf to oppose the proceeding." It may be said that the very fact that there is a compromise shows that the suit was originally contentious. Otherwise there would be nothing to compromise.

7. With all deference to the learned Judges who decided Vythinadayyan v. Subramanya I.L.R(1889) M. 439, I cannot agree with the view that a Court in giving a decree in pursuance of a compromise performs a ministerial and not a judicial function. A decree is none the less a decree as defined by the Code of Civil Procedure, because it is based on a compromis