# JAYARAM MUDALIAR v. J;'YYASWAMI & ORS

- **Citation:** [1973] 1 S.C.R. 139
- **Court:** Supreme Court of India
- **Decided:** 1972-04-12
- **Case number:** Civil Appeal No. 2152 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jayaram-mudaliar-v-j-yyaswami-ors-5772
- **Pages:** 22

## Headnote

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139
JAYARAM MUDALIAR
v.
J;'YYASWAMI & ORS.
April 12, 1972
rs. M. SIKRI, C.J., A. N. RAY AND M. H. BEG, JJ.]
Transfer of Property Act 4 of 1882-S. S2-Doctrine of /is pendens,
applicabilicy of-Sale during pendency ..r suit, "'.hen invalid-Doctrine wh~
ther applies to voluntary sales-Whether appllf'S to sale under Land lmpr()Yetnent Loan.s Ac1 19 of 1883.
Madras High Court Appeilate Side Rules, 19SS-Rule 28'01'<ier IV~
Validity of R.ule.
The plaintiff-respondent filed a suit· for partition of properties men·
tionefii in Schedule B to the plaint belon'ging to· the joint family of which
the first defendant (plaintiff's brother) was the Karta.
After the filine
of the suit the first defendant and his sons made a voluntary sale of
.some of the properties in suit by sale-deed Ex. B7, to the
appellant.
Certain other suit properties mentioned in Ex. BS I were sold at a public
auction under the provisions of the Land Improvement Loans Act 19 of
1883 in connection with arrears of a loan rak,,n by the first defendant
for the purchase of a pump set.
These properties were also purchased
by the appellar.t.
The plaintiff-respondent challenged the validity of too
sales
under
Ex.
B7
and
Ex.
BS!
relying on
the doctrine
of lis pendens embodied in s. S2 of the Tran5fer of Property Act. The
trial court held that the sales were genuine and that the properties sold
were joint family properties, negativing the claim of the first defendant
that they were his individual
properties.
TI-1~ doctrine
of Tis pendens
was held to be applicable to the properties sold. In the decree for partition ho~'ever the tr!al court directed the Comn1issioner who \Vas to divide
the properties by metes and bounds to allot to the share of the first defendant. so far as possible, properties which were covered by. Ex. B7
and B51. The High Court in cecond appeal held that although the. sale
under Ex. B7
was made to satisfy the decree in certain mortgag,~ suits
it was a voluntary sale and could not be equatod with sales in execution
of mortgage. decrees which are involuntary. ·So far as the revenue sale
under Ex. BS I was concerned the High Court after setting out the terms
of s. 7 of Act 19 of 1883 held that only that land sold wa< to be excluded
from the purview of the principle of lis pendens for the improvement
of \\lhich some loan was taken. It therefore modified the decrees of the
Courts below .by giving .a directic>n that '''-rth"r evidence should be talren
before passing a final decree to show what Jana ,;;:mid be thus excluded
from partition. The High Court rejected the application of tte appellant
for. leave to appeal to the Division Bench on the ground that no ora:
request immediately after delivery of judgment was made as provided in
R'!le 28 Order 4 of the Madras High Court Appellate Side Rules !96S.
This Court however allc;wed special leave to appeal under Art. 136 of
the Constitution. Apart from the writs the Court had to consider a
preliminary objection requiring the appeal to be dimissed in limine.
In
this connection the validity of Rule 28 Order 4 also fell for consideration.
HELD : (i) Per Ray and Beg, JJ.-Ru!e 28 of Order 4 of the Madras High G,Qllrt Rules does not purport to affect the power to give the -
declaratiotf contemplated by clause IS of the Letters Patent. It is evident
that the rule is most useful· and necessary, particularly when a period of
thirty days only for filing an appeal has been prescribed by the Limitation
Act 1963. The judge pronouncing the judgment can decide then and there,
iii the presence of the parties or their counsel, whether the case calls for
a certificate.
In a suitable case, where a party is able to prove that it
14 0
SUPREME COURT REPORTS
[1973] 1 S.C R.
was prevented due to some ca115e beyond its control from asking for lea~
at the proper time,. the judge concerned may condone the delay or extend
the time by applying s. 5 of the Limit ttion Act. This salutary rule could
not therefore be held to be ultra vire

## Text

_Characters 0–39,279 of 59,143. This is a partial read: ask again with offset=39279 for what follows._

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139
JAYARAM MUDALIAR
v.
J;'YYASWAMI & ORS.
April 12, 1972
rs. M. SIKRI, C.J., A. N. RAY AND M. H. BEG, JJ.]
Transfer of Property Act 4 of 1882-S. S2-Doctrine of /is pendens,
applicabilicy of-Sale during pendency ..r suit, "'.hen invalid-Doctrine wh~
ther applies to voluntary sales-Whether appllf'S to sale under Land lmpr()Yetnent Loan.s Ac1 19 of 1883.
Madras High Court Appeilate Side Rules, 19SS-Rule 28'01'<ier IV~
Validity of R.ule.
The plaintiff-respondent filed a suit· for partition of properties men·
tionefii in Schedule B to the plaint belon'ging to· the joint family of which
the first defendant (plaintiff's brother) was the Karta.
After the filine
of the suit the first defendant and his sons made a voluntary sale of
.some of the properties in suit by sale-deed Ex. B7, to the
appellant.
Certain other suit properties mentioned in Ex. BS I were sold at a public
auction under the provisions of the Land Improvement Loans Act 19 of
1883 in connection with arrears of a loan rak,,n by the first defendant
for the purchase of a pump set.
These properties were also purchased
by the appellar.t.
The plaintiff-respondent challenged the validity of too
sales
under
Ex.
B7
and
Ex.
BS!
relying on
the doctrine
of lis pendens embodied in s. S2 of the Tran5fer of Property Act. The
trial court held that the sales were genuine and that the properties sold
were joint family properties, negativing the claim of the first defendant
that they were his individual
properties.
TI-1~ doctrine
of Tis pendens
was held to be applicable to the properties sold. In the decree for partition ho~'ever the tr!al court directed the Comn1issioner who \Vas to divide
the properties by metes and bounds to allot to the share of the first defendant. so far as possible, properties which were covered by. Ex. B7
and B51. The High Court in cecond appeal held that although the. sale
under Ex. B7
was made to satisfy the decree in certain mortgag,~ suits
it was a voluntary sale and could not be equatod with sales in execution
of mortgage. decrees which are involuntary. ·So far as the revenue sale
under Ex. BS I was concerned the High Court after setting out the terms
of s. 7 of Act 19 of 1883 held that only that land sold wa< to be excluded
from the purview of the principle of lis pendens for the improvement
of \\lhich some loan was taken. It therefore modified the decrees of the
Courts below .by giving .a directic>n that '''-rth"r evidence should be talren
before passing a final decree to show what Jana ,;;:mid be thus excluded
from partition. The High Court rejected the application of tte appellant
for. leave to appeal to the Division Bench on the ground that no ora:
request immediately after delivery of judgment was made as provided in
R'!le 28 Order 4 of the Madras High Court Appellate Side Rules !96S.
This Court however allc;wed special leave to appeal under Art. 136 of
the Constitution. Apart from the writs the Court had to consider a
preliminary objection requiring the appeal to be dimissed in limine.
In
this connection the validity of Rule 28 Order 4 also fell for consideration.
HELD : (i) Per Ray and Beg, JJ.-Ru!e 28 of Order 4 of the Madras High G,Qllrt Rules does not purport to affect the power to give the -
declaratiotf contemplated by clause IS of the Letters Patent. It is evident
that the rule is most useful· and necessary, particularly when a period of
thirty days only for filing an appeal has been prescribed by the Limitation
Act 1963. The judge pronouncing the judgment can decide then and there,
iii the presence of the parties or their counsel, whether the case calls for
a certificate.
In a suitable case, where a party is able to prove that it
14 0
SUPREME COURT REPORTS
[1973] 1 S.C R.
was prevented due to some ca115e beyond its control from asking for lea~
at the proper time,. the judge concerned may condone the delay or extend
the time by applying s. 5 of the Limit ttion Act. This salutary rule could
not therefore be held to be ultra vires or invalid. [143 F-H)
Penu Ba/akrishna Iyer & Ors. v, .9r1 Ariya M. Ramaswami Iyer & Ora.,
(1964] 7 S.C.R. 149, referred to.
In the present case although the appellant was not shown to have
attempted any explanation of failure to apply for the certificate at the
proper time, yet, the special leave petition having been granted and the
.case having passed without objection, beyond the stage of interim orders
and printing of records, the Court heard arguments on merits also.
[144 F-01
Ptr Sikri, C.J, (concurring)-The High c.o.irt can re&Wate the time
at which and the manner in which tho app~ation for corti1lcate shall be
made. Rule 28 Order 4 does not take away any right clonferred by cl. 15
of the Lett~ Patent. It only regulates the manlier of the exercise of that
riibt.
Union of India v. Ram Kanwar, [1962] 3 S.C.R. 313, referred to.
(ii) Per Ray & Beg, JJ.-Expo!itions of the doctrine of /is pendens
indicate that the need for it arises from the very nature of the jurisdiction
of Courts and their control over the subject matter of litigation so that
the parties litigating before them may not remove any part of the subejcl:
matter outside the power of courts to deol with it and thus make proceedings infructuous. [1:"3CJ
The purpose of s. 52 of the Transfer of Property Act is not to defeat
any just and equitable claim ~ut only to subject them to the authority of
the. Court which is dealing with the prope'rty to which claims are put
forward. In tbe present case the Courts had given directions to safeguard
such just and equitable claims as the purchaser may have obtained without
trespassing on the rights of the plaintiff-respondent in tbe joint property
involved in the partition suit before the Court. Hence, the doctrine of
lis pendens was correctly applied .. [153H, 154A]
In regard to the sale under Ex. B7 the High Court had rightly distin·
guished cases cited on behalf of tbe appellant before it by holding that
exemption from the scope of lis pendens cannot be extended to voluntary
sales in any case. [149 Al
An examin'!ltion of the sale deed Ex. B7 disclosed that it was not
confined to the satisfaction of decretal amounts.
Other items were also
four.ct in it. The sale deed did not purport to be on behalf of the Hindu
joint family of which the plaintiff and the first defendant could be said
to be members.
The sons of tbe first defendant were among the sellers
but not the plaintiff. At most it could be a sale binding on the shares ,of
the sellers.
The first defendant as well as the appellant having denied
that the properties in dispute were joint, could npt take up the position
that the sales were binding on the whole family. Therefore it could not
be held that the assumption of the High Court that the voluntary sale
could not bind the whole family, of which the first defendant was
the
Karta. was incorrect.
Bishan Singh v. Khazan Singh, [1959) S.C.R. 878, distinguished.
As regards the revenue sale under Ex._-B51 the assumption that the
dues could be realised as arrears of land revenue would only apply to
the interest of the borrower so far as clause 7(1) (a) of Act 19 of 1883 is
concerned. The proviro enacts that even recoveries falling under s .. 7 (1)
(c) do not affect plrior inrerests of persons other than the borrower or
of the party which consents to certain loans.
In the jiresent case
the
borromt had himself tal<J:n up the case that tbe loan was taken by him
individually for the purpose of purchasing a pumping-set installed ·.on the
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JAYAllAM MUD,\l.IAR v. A\'YASWAMI (,Sikti, C.I.)
1'41
land. It did not therefore follow that this liallilitv was incurred od behalf
of the joint family unless it amounted to an impl'Ovement Of the joint land ..
Every transaction of the first Q.efendant or in w.spect of joint property in
his possession could not affect rights Of othe'r members. It was for this
reason that section 7(1) (a) was not specifically applied by the
High
Court. But at the same time, the direction that the properties sold should,
so far as possible, be allotted to the first defendant meant that the pur·
chaser oould enforce his rights to thein if they came to !00 share of the
first defendant. [151IJ..FJ
Where a statutory proYision ,is relied upon for recovery of dues, the
efti,ct of it must be confined to what the statute enacts.
Even under the
English law the terms of the statute displace any claim based on the pre·
rogatives of :t: Crown. And in no case can the claim whatever its buis,
justify a sale of tbat property which does not llo:long to the person against
whom the claim exists. [151Hl
Builders Supply Cprporatlon v. The Union of India, !1965] 2 S.C.R.
289 and Attorney-Genera/ v. Dekerysis Royal Hotel., Ltd., [19201 A.C.
508, referred to.
Per Sikri C.J. ( concurring)-Section 42 of the Madras Revenue Re·
covery Act provides that all' lands brought to sale on account of arrears
of revenue shall be sold free of all encumbrances.
The liability of the
land to be sold under s. 7 ( c) of the Act was a pre-existing charge and
that subsisted as from the date of the loans. This was not affected by
the institution of the suit for partition. This chan!l" could be enforced
by the State notwithstanding the pendency of the partition suit.
No
decree in the partition suit could have affected the charge. Therefore,
if the State had sold only the property in respect of which loan was
taken the purcha"*' was not prejudiced by the principle' of lis pendens.
Therefore the direction of the High Court was right insofar as it direct-
-cd the trial court to separate the properties for the improvement
of
E
which the loans under the Land Improvement Loans Act were taken,
from the other properties. [!59H-160BJ
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CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 2152
of 1968.
Appeal by special leave from the judgment and decree dated
July 19, 1968 of the Madras High Court in Second Appeal No.
1173 of 1964.
M. C. Chagla, R. ~opalakrishnan -and T. L. Garg, for the
appellant.
M. K. Ramamurthi, Ramamurthy and Vineet Kumar, for respondents Nos. Land 6 fo 9.
The Judgment of A. N. RAv and M. H. BEG was delivered
by BE.G J. Sn::RI C.J. gave a separate Opinion.
Reg, J. Jayaram Mudaliar, the Appellant before us by Special
Leave, purchased some lease hold land for Rs. 10,500 / - from
Munisami Mudaliar and others under it sale deed of 7-7-1958
(Exhibit B-7) and some other lands shown in a sales' certificate
dated 15-7-1960, (Exhibit B-51) sold to him for Rs. 6,550/- at
a public auction of immovable property held to realise the dues
in respect of loans taken by Munisami Mudaliar under ·the Land
Improvement Loans' Act 19 of 1883. Both Jayaram and Munisami, mentioned above, were impleaded as co-defendants in a
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[19'73] 1 S.C.R.
partition suit, in Vellore, Madras, now before us in appeal, comA
menced by a pauper application dated 23-6-1958 filed by the
plaintiff-respondent Ayyaswami Mudaliar so that the suit must
be deemed to have been filed
on that · date.
The plaintiffrespondent before us had challenged, by an amendment of his
plaint on 18-9-1961, the validity of the. sales of Jani mentioned
above, consisting of items given in schedule 'B' to the plaint, on
the ground, inter..a/ia, that these sales, of joint property in suit,
were S'(ruck by the doctrine of tis pendens embodied in Section 52
of ti)e Indian Transfer of Property Act. As this is t):le sole question, on merits, raised by the appellant before us for considefation, we will only mention those f11cts which are relevant for, its
decision.
Before, however, dealing with the above-mentioned question,
a preliminary objection tv the hearing of this appeal may be disposed of.
The Trial Court and the Court of first appeal having
held that 'the rule of /is pendens applied to the sales mentioned
above, the appellant purchaser had filed a second appeal in the
High Court of Madras, which was substantially dismissed by a
learned Judge of that Court, on 19-7-1968, after a modification
of the decree.
Leave to file a Letters Patent appeal was not
asked for in the manner required by Rule 28, Order IV of the
Rules of Madras High Court, which runs as follows :
·
"28. When an appeal against an appellate decree_or
order has been heard and disposed of by a single Jildge,
any application for a certificate that the case is a fit one
for further appeal under clause 15 of the Letters Patent
shall be made orally and immediately after the judgment has been delivered."
/.
But, 1he appellant, after obtaining certified copies of the judgment
aJ:!d decree of the High Court, sent a letter to the Registry that
the case be listed again for obtaining a ceJtificate of fitness to file
a Letters' Patent appeal.
The case was, therefore, listed before
the learned Judge and an oral application which was then made
for grant of a certificate, was rejected on 6-9-1968 on the ground
that it had not been made at the proper time.
It was contended, on l;>ehalf of the. respondent, thwt, in the
circumstances stated"llbove, the appellant must be deemed to have
been satisfied with t):le Judgment of the High Coun as his Counsel
did not ask for leave to file a Letters' Patent appeal as required
by Order IV Rule 28 of .tlie Rules of the Madras High Court (that
is to say, immediately after the judgment has been delivered).
The following observations of this Court in .Penu Balakrishna
Iyer & Ors. v. Sri Ariva M. Ramaswami Iyer & Ors.(1) were
cited to contend that the appeal before us should be rejected in
limine :
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(J) [1964) 7 S.C.R. 49@ <2-<3
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.JAYA'AAM MUDALIAR. V, AYYASWAMI (Beg, /,)
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"Normally, an application for' special leave against
a second _!ippellate' decision would not be granted un·
less the remedy of a Letters Patent Appeal has been
availd of. In fact, nc, appeal against second 2ppellate
decisions appears to be contemplated by the Constitution
as is evident from the fact that Art. 13 3 ( 3) expressly
provides that normally an appeal will not lie to this
Court from the judgment, decree, or final order of one
Judge of the High Court. . It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the
Court would grant the application and proceed to deal
with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the
remedy by way of a' Letters' Patent Appeal must be
resorted to before a party comes to this Court''.
In reply to the preliminary objection, Mr. Chagla, a?pearing
for appellant, has assailed the validity of the above mentioned
Rule 28 of Order IV itself. It is submitted that the rule conflicts
with the provisions of clause 15 of the Letters' Patent of the
Madras High Court requiring only that the Judge who passed the
judgment should declare that the case is fit one for appeal as a
condition for appealing. It was urged that the period of limitation for filing an appeal should not, in effect, b~ cut down by a
rule such as the one found in Rule 28, Order IV of the· Rules of
Madras High Court. It was urged that, before article 117 of the
Limitation Act of 1963 introduced a period of <thirty days from a
decree or order for filing a Letters' Patent appeal, the period of
limitation for such appeals fell under the residuary article 181 of
the old Limitation Act.
As applications for
certification fell
outside the provisions of the Civil Procedure Code and there was
no specific provision for them in the Limitation Act the High
Court could frame its own rule prescribing the mode and time for
making such applications.
Rule 28 of Order IV of the Madras High Court does not
pur,?Ort to affect the power to give the declaration contemplated
by clause 15 of the Letters' Patent. In some High Courts, there
is no rule of the Court laying down that the application should
be oral and made immediately after the judgment has been
delivered. It is, however, evident that a rule such as Rule 28 of
Order IV. the Madras High Court is most useful and necessary
particularly when a period of thirty days only for filing an appeal
has ~n prescribed in 1963. The Judge pronouncing the judgment can decide then and there, in the presence of parties ox
their counsel, whether the case calls for a certificate. In a suitable case, where a party is able to prove that it was prevented
due to some cause beyond its control from asking for leave at the
proper time, the Judge concerned may condone non-complianc.e
144
SUPREME COURT IU!PORTS
(1973] 1 S.C.R.
by a party with Rule 28, Order IV, of the Madras High Court,
or extend time by applying Section 5 of the Limitation Act. This
salutary rule could not, therefore, be held to be ultra vires 01
invalid.
There is, however, another answer to the preliminary objection. It was contended that the case before us is covered by what
was laid down by this Court 'in Penu Balakrishna Iyefs case
(Supra) when it said (at page 53) :-
" .... we do not think it would be possible to lay
down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters
Patent and it cannot be so granted, nor is it possible to
lay down an inflexible rule that if in such a case leave
has been granted it must always and .necessarily be
·revoked. Havingregard to the wide scope of the powers
conferred on this Court under Art. 136, it is not possible and, indeed, it would not be expedient, to lay down
any general rule which would govern all cases.
The
question as to whether the jurisdiction of this Court
under Art. 136 should.be exercised or not, and if yes, on
what terms an.d conditions, is a matter which this Court
has to decide on the facts of each case".
In that particular case, this Court had actually heard and allowed tile appeal by Special leave because it he'd that there was no
ii:eneral inflexible rule that special leave should be refused where
the appellant has not exhausted his rights by asking for a certificate of fitness of a case and because that case called for interference.
It is urged before us that the appellant had done whatever he
possibly could, in the circumstances cif the case, to apply for and
obtain a certificate of fitness after going through the judgment of
the High Court, so that the rule that alternative modes of redress
should be exhausted before coming to this Court. had been really
complied with. Each case must, we think, be decided upon its
own facts. In the case before us, although the appellant was not
shown to have attempted any· explanation of failure to apply for
the certificate at the proper time, yet, the special lea've petition
having been granted, and the case having. passed, without objection, beyond the stage of interim orders and printing of the records,
we have heard arguments on merits, also. The merits may now
be considered.
The challenge on the ground of /is pendens, which.had been
accepted by the Courts in Madras, right up to the High Court,
was directed against two kinds of sales : firstly, there was
the
ostensibly voluntary sale of 7-1-1958 under a sale deed by the
def~dant Munisami Mudaliar and his major son Subram~an
Mudaliar and three minor sons
Jagannathan, Duraisami alias
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JAYARAM MUDALlAR " AITASWAMI (Beg, J:)
145
Thanikachalam, and Vijayarangam in favour of the defendant-
. appellant; and, secondly, there was the sale evidenced by the
sale certificate (Exhibit B. 51) of 15-7-1960 showing that the
auction sale was held in order to realise certain "arrears under
hire purchase system due to Shri 0. D. Munisami Mudaliar".
The words "due to" must in the context, be read as "due from'"
hecause "falsa demostration non nocef'.
The deed of the voluntary sale for Rs. 10, 500 /- showed that
Rs. 7375.11 Ans. were to be set off against the money due on a
decree obtained by the purchaser against the sellers in original.
suit 2/56 of the Vellore Sub-Court, Rs. 538.5 Ans. were left to
liquidate the amount due for principal and interest due to the
purchaser on a bond dated 14-10-1957, by Munisami Mudaliar,
Rs. 662. 9 Ans. was to be set off to liquidate another amount due
to the purchaser from Munisami on accqunt of the principal and
interest on another bond executed by Munisami, Rs. 1250.0.0 was
left to pay off· and liquidate the balance of a debt due to one
Thiruvenkata Pillai from Munisami, Rs. 100.0.0 were meant to
settle a liability to the Government in respect of a purchase of
cattle and for digging of some well, Rs. 51.13 Ans. were to go·
towards settling a similar liability, and only Rs. 521.11 Ans. were
paid in cash to the seller after deducting other amounts for
meeting liabilites most of which were shown as debts to the purchaser hmiself.
It may be mentioned here that, on 17-1-1944,
Munisami had eicecuted a mortgage of some of the property in
Schedule 'B' of the plaint for Rs. 7 ,SOO / - in favour of Kannayiram,
and he had executed a second mortgage in respect of one item of
property of Schedule 'B' in favour of Patta Mal, who had assigned
his rights to T. Pillai. A third mortgage of the first item of
Schedule 'B' properties was executed on 27-5-1952 by Munisami,
in favour of the appellant Jayaram, was said to be necessitated
by the need to pay arrears of Rs. 3,000/- incometax and for discharging a debt and a pronote in favour of a man called Mudali.
In 1955, an original suit No. 124/1955 had been filed by T. Pillai
who had obtained orders for the sale of the first item of Schedule
'B' properties shown in the plaint
The original suit No. 2 of
1956 had been filed for principal and interest due on 27'5-1952
G.
to the appellant who had obtained an attachment on 5-1-1956 of
some schedule 'B' properties. The appellant had obtained a preliminary decree on 25-1-1956 in his suit and a final decree on
14-9-1957. All these events had taken place before the institution o_f the partition suit on 23-6-1968. But, the vortintary sale·
to satisfy decretal amounts was executed after this date.
The
seconcl sale was an involuntary sale for realisation of dues under
the provisions of section 7 of the Land Improvement Loans Act
H
19 of 1883 which could be realised as arrears of land revenue.
There was nothing in the sale certificate to show that the due for
146
SUPREME COURT REPORTS
[l 9'73] 1 S.C.R.
which properties were sold were of anyone other than Munisami
individually.
A
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On the facts stated above, the appellant Jay.aram claims that
both kinds of sales were outside the purview of the doctrine of lis
pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which Munisami
was the karta. The liabilities incurred by Munisami, it was sub-
.mitted, as karta of the family, had to be met, ~any case, out of
the properties which were the subject matter of the partition suit.
It was urged that where properties are liable tq. be sold for payment of such debts as have to be discharged by the whole fal!lily,
only those properties would be available for partition in the
pending suit which are left after taking away the properties sold c
for meeting the pre-existing liabilities Of the joint family. In th~
case of the sale (or discharging dues under the Land Improvement Loans Act it was also contended that they obtained p{iority
·Over other claims, and, for this additional reason, fell outside the
scope of the principle of lis pendens.
· The defendant-respondent Munisami and the defendant·
appellant Jayaram had both pleaded that the properties in suit
were acquired by Munisami with his own funds obtained by
separate business in partnership with a stranger and that Ayyaswami, plaintiff, had no share in these properties. The plaintiff.
respondent's case was that although the properties were joint, the
liabilities sought to be created and alienations made by Munisami
were fraudulent and not for any legal necessity, and, therefore,
not binding on the family.
The Trial Court had found that the properties given in
S9hedule 'B' were joint family properties of which the defendantiespondent Munisami was the karta in possession. This finding
was affirmed by the first Appellate Court and was not touched in
the High Court. It did not follow from this finding that all dealings of Munisami with joint family properties, ·on· the wrong
assumption that he was entitled to alienate them as owner and
not as karta, would automatically become binding on the joint
family.
A karta is only authorised to make alienations on
behalf of the whole family where these are supported by legal
necessity. It was no party's case that the alienations were made
on behalf of, and, therefore, were legally binding on
~he joint
family of which plaintiff-respondent Ayyaswami was a member.
The Trial Court recorded a finding on which the learned
Counsel for the appellant relies
strongly : "There is
overwhelming documentary and oral evidence to show that the sale
deed Exhibit B. 7 and the revenue sale are all true and supported
by consideration and that the 12th Defendant would be entitled
. to them, if these sales were not affected by the rule of /is pendens
·Within the meaning of Section 52 of the Transfer of Property Aci."
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JAYARAM MUDALIAR V. AITASWAllU (Beg, J.)
147
It may be mentioned here that the 12th Defendant is no other than
the appellant Jayaram Mudaliar, the son .. in-law of defendantrespondent Munisami Mudaliar, ·whq had purchased the properties covered PY both the impugned sales. The plea of the plaintiff-respondent Ayyaswami that the sales in favour of Jayaram,
the 12th defendant-appellant, were fraudulent and fictitious and
not supported by valuable conSideration was rejected. Although,
the trial Court's decree for the partition included the properties
covered by the two impugned sales evidenced by Ex. B.7 and B.51,
yet, the Commissioner who was to divide the properties by metes
and bounds, was directed to allot to Munisami's share,. so far as
possible, properties which were covered by Exhibit B. 7, and B.51.
This implied that the liabilities created by the decrees for whose
s~tisfaction t® sale deed dated 7-7-58. (Exhibit B-7) was exe-
<:uted and the revenue shle of 16-3-1960 for loans under an
agreement were treated as the separate liabilites of the defendant
Munisami and not those of the joint family.
The Trial Court as. well as the first Appellate Court had also
rejected the plea that the revenue sale of 16-3-1960 to satisfy preexisting liabilities of Munisami had any p1iority over the rights of
the plainilff-respondent may get in the partition suit. The result
was that the partition suit was.decreed subject to a direction for the
allotment of the properties covered by Exhibit B. 7 and B.51 so
that the purchaser may retain these properties if°they were allotted
to Munisami.
The High Court of Madras had described the sale of 7-7-1958
as a "voluntary alienation", and, thereby, placed it on a footing
different from an involuntary sale in execution of a decree in a
mortgage suit. T,he obligations incurred before the
sale of
7-7-1958, by reason of the decrees in the mortgaged suits, were not
on this view, liabilities which could be equated with either transfers
prior to the institution of the partition suvt or with sales in execution
of mortga~ decrees which are involuntary. So far as the revenue
sale was concerned, the High Co1,1rt, after setting out the terms of
Section 7 of the Land Improvement Loans Aot 19 of 1883, held
that only that land sold was to be e.xclucled from the purview of
the principle 'of lis pendens ifor the improvement of which some
loan was taken.
This meant that only that part of the loan was
treated as a liability of the joint family as could be said to be
taken for the joint land.
It, therefore, modified the decrees of
the Courts below by giving a direction that further evidence
Should I be taken before passing 8 final decree (0 ShOW What land
could be thus excluded from partition.
The plaintiff-appellant has relied upon certain authorities laying down that the doctrine of /is pendens is not to be extended to
cover involuntary sales in execution of a decree in a mortgage suit
where the mortgage was prior to the institution of the suit in which
148
SUPREME COURT REPOR1S
[1973] 1 S.C.R.
the plea of /is pendens is taken, because the rights of rthe purchaser
in execution of a mortgage decree date back to the mortgage itself.
They are: Chinnaswami Padda)lllchi v. Darma/inga Paddyachi( 1)
Gulam Rasool Sahib v. Hamida Bibi( 2 ), Baldeo Das Bajoria &
Ors. v. Sarojini Dasi & Ors.,( 3 ) Har Prashad Lal v. Dalmardan
Singh ('). Reliance was also placed on the principle laid down in
Shyam Lal & Anr. v. Sohan Lal & Ors.,(') to conten>l that,
since Section 52 of the Transfer of Property Act does not protect
transferors, a transfer on behalf of the whole joint· Hindu family
would be 01,1tside the p1,1rview of the principle in a partition suit.
The contention advanced on the strength of the last mentioned
case erroneously assumes that the impugned sales were on behalf
of the joint family.
Learned Counsel for the plaintiff-respondent has, in reply,
drawn our attention to the following observations of Sulaim~n,
Ag. C.J.; expressing the majority opinion in Ram Sanehl Lal &
Anr. v. Janki Prasad & Ors.( 6 ). (FB) :
" .... the language of S. 52 has been held to be
applicable not only to private transfers but also to Court
sales held in execution of decrees.
S. 2(d) does not
make S. 52 inapplicable to Ch. 4, which deals with
mortgages.
This is now well-settled : vide Radhamadhub Holdar v. Manohar Mukerji (A) and Moti Lal
v. Kharrabuldin (B)
followed in numerous cases out
of which mention may be made of Sukhadeo Prasad
V. Jamna(C) ".
(A) (1888) 15 Cal. 756=15 I.A. 97
(B) (1898) 25 Cal. 179=24 I.A. 170.
(C) (1901) 23 All. 60=(1900) A.W.N. 199.
But, as we have no actual sale in execution of a mortgage decree,
this question need not be decided here. Another decision to
which our aftention was drawn. was : Maulabax v. Sardarmal &
Anr.(7).
The suggestion made on behalf of the appellant, that attachment of some schedule 'B' property before judgment in the purchaser's mortgage suit could remove it from the ambrt of lis
pendens, is quite unacceptable. A contention of this kind was
repelled, in K. N. Lal v. Ganeshi Ram, (8 ) by this Court as
clearly of no avail against the embargo imposed by Section 52 of
the Transfer of Property Act.
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(1) AIR 1932 Madras 566.
(3) AIR 1929 Calcutta 69c.
(5) AIR 1928 All. 3.
(2) AIR 1950 Madras 18S.
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(7) AIR 1952 Nag. 341
(4) !LR 32 Calcutta 891.
(6) AIR 1931 All. P. 466@ 480.
(8) [1970] 2 S.C.R. 204 at 211
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JAYARAM MUDALIAR V, AYYASWAMI (Beg, J.)
149
The Hi&h Court had rightly distingu~hcd cases
c~ted on
behalf of the appellant before .it by holdmg that exemption froi:n
the scope of /is pendens cannot be extended to voluntary salj:S m
any case. Obviously, its view was that, even where a. voluntary
sale takes place in order to satisfy the de'cretal amount m a mortj!_age suit, the result of such a sale was n<~t tl!e same a:i that of an
involuntary sale in the course of execution proceedings where
land is sold to satisfy the decree on the strength of a mortgage
which creates an interest in the property mortgaged. The Wgh
Court had observed that, as regards the satisfaction of the mort·
gage decree in his favour, which was part of the c;onsiderati!>ll for
the sale of 7-7-1958, the appellant purchaser decree holder could
get the benefit of Section 14 Limitation Act and still execute his
decree if it remained unsatisfied due to failure of consideration.
An examination of the sale deed of 7-7-1958 discloses that
it is not confined to flle satisfaction of the_ decretal amounts. Other
items are also found in it. The sale deed does not purport to be
on behalf of the Hindu joint family of which Ayyaswami the
plaintiff and Munisami Defendant No. 1 could be said to be
members. It no doubt mentions the sons of Munisami Mudaliar
but not Ayyaswami, plaintiff, among the sellers.
At most,
it
could be a sale binding on the shares of the seller~. As already
indicated, Munisami, Defendant-Respondent, as well as Jayaram,
Defendant-Appellant, having denied that the properties in dispute were joint, could not take up the position that the sales were
l>inding on the whole family,
Therfeore, we are unable to hold
that the assumption of the Madras High Court that the voluntary
sale could not bind the whole family, of which Munisami was
the karta, was incorrect.
Learned Counsel for the appellant had also relied on Bishan
Singh v. Khazan Singh. ( 1) That was a case in which, before the
deposit of money by the- pre-emptors in a suit to enforce
their
rights to pre-emption, the vendee had sold his rights to the appellant who had an equal right of pre-emption. It was held _ there
that the claim for pre-emption could be defeated by such a device
which fell outside the purview of the principle of /is pendens: We
think that this decision turns upon its own facts and on the nature
of the right of pre-emption which, as was observed there, is
a
weak right. This Court had held that this weak right could be
defeated by a sale which a vendee is compelled to make for the
purpose of defeating the right, provided the purchaser's superior or
equal right to pre-emption had not been barred by limitation. On
the question considered there. the view of .the East Punjab High
Court in Wazir Ali Khan v. Zahir Ahmad Khan(') was preferred
to the view of the Allahabad High Court in Kundan Lal v. Amar
(I) [1959] S,C.R, 878.
(2) A.tR. 1949 East Punj, 193,
'SUPREME COUllT REPORTS
(19:73) 1 S.C.R,
S.irigh. (1)
The observations made by this cOurt with teg\tJ'll to
the d.octrille. of lis pendens when a plaill¢iff is enfQfCing a rigb~ of
pre-emptiO!l must; we think,, be confined to cases of sales which
coUlcl defeat pre-emptors' clailllS. It has to be remembered that a
technical rule of the law of pre-emption is that the pre.emptor, to
succi;ed il1 his suit, must continue to possess. the right to pre-empt
until the decree for possession is passed in his favour.
As regard!! the revenlloO sale of 16-3-1960 (EXlill>it U.Sl) we
find;that .the sale certificate is even less infomiative than the.
voluntary sale cleed \:Onsidered above.
Nevertheless, the View
taken by: the .Madras High Court was .that any land for tliii improvement of which loan is shown to have been. taken by Muni~
sami M11daliar would be excluded from the p~iew of th~ .doctrine of lis pendens. It is, however, urged tliat the High Court
had given effect to clause ( c) of Sectioq. 7 of the Latill Improve,
inent Loans Act of 1883, but had overlooud cliiuse (a). llere,
the relevant part of Section 7, sub-s. ( 1) of this Ai::t maY.. be set
out. It reads as follows :-
"7. Recovery of loans.-(!)· Subject to' Such ·rult&
as may be made under Section 10, all loans granted
under this Act,
3:11
inte~est (if . an~) . chargeable
thereon, and costs (if any) mcurred m makmg the same
shall, when they become due be' recoverable by the
Collector in all or any of .the· rvl!owing mooes, namely :-
(a) from the borrower-as if they were arrears qf
land revenue due by him;
.
(b) from his surety (if any) as if they were arrears ·
of land revenue due by him;.
( c) out of the land for the benefit of which the loan
has been granted as if they were arrears of land
revenue due in respect of that land;
( d) out of the property comprised in tl!e collateral
security (if any)-according to the procedure
for the realization of land revenue by the sale of
iminovable property other than the land on
which that revenue is due :
Provided that no proceeding in respect of
any land under clause ( c) shall affect any
interest in that land which existed before tho.
date of the order granting the loan; other than
the interest of the borrower, and of mortgages
of, or persons having charges on, that interest,.
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(I) A.I.R. 1927 All. 664.
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.i"AYARAM MUDALIAR V. A\YAsWAMI (Beg,/.)
151
and where the loan is granted under Section 4
with the consent Of another person, the interest
of that person, and of mortgagees of, or persons
having charges on, that interest."
Reliance was also placed 011 Sec. 42 of the Madras RevenueRecovery Act of 1864 which reads as follows:
"All lands brought to. sale on accollllt of arrears
of revenue shall be sold free of all incumbrances, and if
any balance shall remain after liquidating the arrears
with interest and the expenses of attachment and sale
and other costs due in respect to such· arrears, it shall
be paid over to the defaulter unless such payment be
prohibited by •he injunction of a Court .of competent
jurisdiction."
It will be seen that the assumption that the dues could be
realised as arrears of land revenue would only .apply to the interest
of the borrower so far as clause ( 7 )( l )(a) is concerned. The
proviso enacts that even recoveries falling under Sec. 7 (1 )( c)
do not affect prior interests of persons other than the borrower
or of the party which consents to certain loans.
In the case
before us, the borrower had himself taken up the case that the
loan was taken by hint individually for the purpose of purchasing
a pumping set installed on the land. It did not, therefore, follow
that this liability was incurred on behalf of the joint family unless· it amvunted to an improvement of the' joint land. . Every
transaction of Munisami or in respect of joint property in· his
possession could not affect rights of other members.
It was for
this reason that Section 7 ( 1 )(a) was not specifically applied by
the High Court. But, at the same time, the direction that the properties sold should, so far as possible, be allotted to Munisami
meant that the purcha8er could enforce his rights to them if they
came to the share of Munisami.
The question of paramount claims or rights of the Government for the realisation of its taxes or of dμes which are equated
with taxes was also raised on behalf of . the appellant on the
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strength of Builders Supply Curporation v. The Union of India('!)
In that case, the origin of the paramount right of the State t.o
realise taxes due, which could obtain priority over other claims,
was traced to the prerogatives of the British crown in India.
Apart of the fact that there is no claim by the Stjte before us,
we may observe that, where a statutory provision is relied upon
for recovery of dues, the effect of it must be confined to what the
H
~tatute enacts.
Evc:n under the English law, the terms of the
statute displace any claim based on prerogatives of the Crown
(I) [1965) 2 S.C.R. 289.
152
$UPJ.E:ME C@UllT REPORTS
{19'73) 1 S.C.R.
vi de Attorney General v. De Keyser's Royal Hotel Ltd.(') And,
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.in no case, can the claim, whatever its basis, justify a sale of that
property which does not belong to the person against whom the
claini exists. As already observed a claim under Secfion 7 (1) (a)
·of the Land Improvement Loans Act of 1883 could only be made
from the borrower.
This meant that, unless it was proved that
Munisami, in taking a loan under the Act, was acting as the karta
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·of the joint Hindu family of which Ayyaswamy was a member,
recovery of arrears could only be made from Munisami's share
in the land.