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High Court Of Madhya Pradesh
S. P. Bhargava, J.
ATTARBAI, RATANSINGH - Appellant
Versus
MISHRILALSA SON OF SIWASA - Respondents
Second Appeal 258 Of 1961
Decided On : 12/04/1964
The question of the plaintiff being the bona fide purchaser for value and without notice of the charge on the purchased property is a question of fact. The finding of the first appellate Court on this point based on appreciation of evidence is binding in second appeal. [Para 9]
(2) Transfer of Property Act, 1882 - S. 100 - charge created by a decree -whether within the scope of section 100 - Conflict of views of Nagpur High Court pointed out. There is conflict of opinion in the Nagpur High Court on the question whether the charge created by the decree was a charge under section 100 of the Transfer of Property Act or out side the scope of that section Conflict between 23 MPLC 431, and 25 MPLC 389 on the one hand and 30 MPLC 67 and ILR 1949 Nag. 802 pointed out. AIR 1959 AP 622, AIR 1951 All. 141, AIR 1956 Hyd. 67, ILR 19 Luck. 1 and AIR 1958 Mad. 23 referred to.
[Paras 10 to 13]
(3) Civil P. C., 1908 - S. 11 - charge on a property claimed in a maintenance suit- is a 'right' to property directly and substantially in issue-is res judicata in a subsequent suit by a privy or transferee of the previous judgment debtor.
A charge is certainly a 'right'. The charge which is claimed in a maintenance suit is the right to receive payment of the maintenance allowance out of the particular property. This right is directly and substantially in issue in a maintenance suit. The transferee from the judgment debtor in such a suit is bound by the previous decree and cannot maintain a suit for declaration that the property is not liable to be sold in the execution of the decree for maintenance. The transferee cannot plead that he had no knowledge of the decree. :- 5 IA 211 and AIR 1956 SC 593 relied on. AIR 1951 All. 141, ILR 1939 All. 885, AIR 1943 Oudh 354, ILR 20 Pat. 86 and AIR 1948 Pat. 199 referred to. [Paras 15, 16 & 17]
Such a decree is binding on the privies in blood, privies in law and previes in estate.
[Para 18]
(4) Civil P.C., 1908 - O. 23, R. 3 - compromise decree-nature of-when binding .
A compromise decree has' all the elements of a contract being based on a contract and, therefore, can always he attacked by raising those pleas against it which could validly be urged against a contract, but it cannot also be disputed that so long as it has not been so attacked and it continues to be binding, it bas all the force and characteristics of a decree. [Para 19]
(5) Transfer of Property Act, 1882- S. 52 - principle of lis pendens - transferee when bound.
The principle of lis pendens is not based on notice. [Para 20]
A transferee would be bound by the principle embodied in section 52 of the Transfer of Property Act provided it could be found that there was a right to immovable property directly and specifically in question in the suit. [Para 21]
( 1 ) THIS appeal has been filed by the defendant 1 Smt. Attar Bai against whom the plaintiffs claim for declaration that she had no right to get the disputed house sold in execution of her decree for maintenance has been decreed by the lower appellate Court after reversing the judgment of the trial Court.
( 2 ) BRIEFLY stated, the facts are that Smt. Attar Bai is the widow of one Batan Singh who had two other brothers Nawal Singh and Gangaram. On the death of Ratan singh, Smt. Attarbai instituted Civil Suit No. 53-A of 1955 in the Court of the Civil judge Class I, Khandwa, on 23-10-54, against Nawal Singh and Gangaram who were impleaded in the suit out of which this appeal arises as defendants 2 and 3 claiming arrears of maintenance and future maintenance. She also claimed in the plaint that the amount of maintenance, both of arrears and future, be declared as a charge on the joint family property. With the plaint, she filed Schedule 'b' containing the list of the joint family properties. Item No. 4 in that list is a house which was later on sold by Nawal Singh to the plaintiff Seth Mishrilal Sa for Rs. 1250/- under a registered sale deed, dated 15-12-1956. In Attarbai's suit, there was a compromise between the parties and there was a compromise decree, dated 24-11-1955, in terms of the compromise, passed by the Civil Judge Class IT, to the following effect:
"it is ordered and decreed in terms of the compromise arrived at between the parties as noted below: (a) The defendants shall pay to the: plaintiff Rs. 150/- per year as maintenance, coming from 31-3-56 and payable by the same date during each ol the succeeding years. (b) The defendants shall give to the plaintiff one chasma house out of the house detailed as item No. 5 in schedule 'b' on the reverse. (c) In default of any of the maintenance amount due, the plaintiff shall have the right to recover the same by getting the property detailed in schedule 'b' (shown on the reverse) sold i. e. the property of schedule B shall remain under charge for payment of the maintenance amount. (d) The defendants shall pay plaintiff's costs Rs. 63-10-0 of the suit. Defendants shall bear their own costs Rs. 6. 8. 0. Court fees Rs. 350/- on the plaint shall be recovered half and half from plaintiff and defendants. . . . . "
( 3 ) AS the amount of maintenance which fell due to the appellant was not paid to her by Nawal Singh and Gangaram she took steps to have the house, referred to above, sold in execution of her decree. Seth Mishrilal Sa then instituted Civil Suit no. 12-A of 1960 in the Court of the Civil Judge Class I, Khandwa, claiming thai he was the bona fide purchaser for value of the suit house without any notice of Smt. Attar Bai's charge of maintenance amount on the said house. It was urged that neither the compromise nor the decree or the copies thereof were registered nor had the plaintiff any notice of the litigation between Smt. Attar Bai on the one hand and Nawal Singh and Gangaram on the other. The plaintiff respondent No. 1, therefore, urged that it be declared that the house property purchased by him was not liable to be sold in execution of the decree in Civil Suit No. 53-A of 1955 of the court of the Civil Judge Class II, Khandwa, dated 24-11-1955. It was also prayed that the defendant be permanently restrained from putting to sale the suit property.
( 4 ) THE trial Court dismissed the plaintiff's claim holding that it had not been proved that he was a bona fide purchaser with consideration without notice of the charge in respect of the said house. In appeal, the learned District Judge took the view that the plaintiff was a bona fide purchaser for value without notice of Smt. Attarbai's charge on the suit house and, therefore, he was protected by the provisions of Section 100 of the Transfer of Property Act. It is against this decision that this appeal has been filed by Smt. Attarbai.
( 5 ) THE argument advanced by Shri J. V. Jakatdai, learned counsel f
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