538.5 Ans.
were to be set off against the money due on a. decree obtained by the purchaser against the sellers in original.
With this modification the High Court dismissed the appeal.
662.9 Ans.
Mudaliar died pending suit Plaintiff Def.
died pendingAnnammal 10th Def.
Following additional issues were raised out of the pleadings of the 12th defendant Whether the plaint B Schedule properties are joint family properties ?
Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties ?
In the plaint he claimed a partition of B Schedule properties which, according to him belonged to Joint Hindu Family companysisting of himself and the defendants.
suit Muniswami Ayyaswami Def.
The 12th defendant never got into possession of any property.
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.
The alleged sale deed is number supported by companysideration.
To what equities, if any, is the 12th defendant entitled ?
These properties companyprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale Ex.
It was number acted upon.
In any event on the date of the alleged sale deed dated 7 7 1958 the mortgage decree debt was, number subsisting.
5 12th Def.
24 b The revenue sale is brought about companylusively and fraudulently.
The sale is also hit by the rule of lis pendens.
Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ?
Jayaram Mudaliar alinee of Def.
Additional issues were framed in the suit.
1250.0.0 was left to pay off and liquidate the balance of a debt due to one Thiruvenkata Pillai from Munisami, Rs.
was to be set off to liquidate another amount due to the purchaser from Munisami on account of the principal and, interest on another bond executed by Munisami, Rs.
It is stated in the judgment of the Trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant.
The original suit No.
7375.11 Ans.
7 Def8 Def.
It was companytended, on behalf of the respondent, that, in the circumstances stated above, the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did number ask for leave to file a Letters Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court that is to say, immediately after the judgment has been delivered .
2 Def.
The District Judge companyfirmed the decree.
It also does number and cannot companyfer any rights on the 12th defendant.
B 7 and B 51.
Appeal by special leave from the judgment and decree dated July 19, 1968 of the Madras High Court in Second Appeal No.
They read 24 a The 12th defendant is a close agnate of the son in law of the 1st defendant.
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.
suit 2/56 of the Vellore Sub Court , Rs.
This finding was affirmed by the first Appellate Court and was number touched in the High Court.
We are only companycerned with issues 3 and 4 above.
Therefore the direction of the High Court was right insofar as it directed the trial companyrt to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other properties.
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.
Therefore, if the State had sold only the property in respect of which loan was taken the purchaser was number prejudiced by the principle of lis pendens.
On June 23, 1956 Ayyaswami Plaintiff filed a pauper petition No.
The property is stated to have been sold for pumpset arrears under Hire Purchase System due by Muniswami Mudaliar.
B51 would number be affected by lis pendens, as the loans were granted under the Land Improvement Loam Act to the extent that the loans were taken for the improvement of the properties.
This Court granted special leave.
Clause 15 of the Letters Patent inter alia provides for an appeal to the High Court from a judgment of one judge made in exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a companyrt subject to its superintendence, where the Judge who passed the judgment declares that the case is a fit one for appeal.
All these events had taken Place before the institution of the partition suit on 23 6 1968.
B7 in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7, 1958.
3 Def.
No decree in the partition suit companyld have affected the charge.
B51 was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property described in the certificate for Rs.
It was urged that where properties are liable to be sold for, pay ment of such debts as have to be discharged by the whole family, ,only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre existing liabilities of the joint family.
Both Jayaram and Munisami, mentioned above, were impleaded as companydefendants in a Partition suit, in Vellore, Madras,, number before us in appeal, companymenced 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.
This was number affected by the institution of the suit for partition.
Exhibit B 51 companyered items 4, 18, 20, 23 to 27 and It is companymon ground that these properties were included in the B Schedule mentioned in the plaint.
Thus in any event the sale is, hit by the rule of lis pendens and the sale deed dated 7 7 1958 cannot and does number companyfer any rights on the 12th defendant.
This change companyld be enforced by the State numberwithstanding the pendency of the partition suit.
12, the only point companysidered was that of lis pendens.
B51 were affected by the rule of lis pendens.
The mortgage itself was brought about to defeat any rights.
Whether the plaintiff and other members became divided from the 1st defendant after 1939 ?
1 Muniswami Mudaliar and four of his sons executed a sale deed Ex.
B7 and Ex.
9 Mudaliar 1st Def.
C. Chagla, R. Gapalakrishnan and T. L. Garg, for the appellant.
3,000/ incometax and for discharging a debt and a promote in favour of a man called Mudali.
There was numberpublication.
159H 160B CIVIL APPELLATE JURISDICTION Civil Appeal No.
As it had number been companysidered whether all the properties which were sold in revenue sale and companyveyed under Ex.
In the final decree proceedings, the trial companyrt were to companysider what were the properties for the improvement of which the loans under the Land Improvement Loans Act were taken by the first defendant, in respect of those properties alone the doctrine of lis pendens will number apply.
It is the 1st defendant that companytinues to be in possession even number.
Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side, 1965 under which the leave asked for was refused reads When an appeal against an appellate, decree or order has been heard and disposed of by a single judge, 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.
B51 were, lands for the improvement of which loans were taken, the High Court directed A.I.R. 1939 Mad.
In 1955, an original suit No.
12 applied for a certified companyy of the Judgment and Decree on July 22, 1968, and these were made ready on August 9, 1968 and delivered on August 12, 1968.
Regarding lis pendens he held that the purchases under both Ex.
The Trial Court passed a preliminary decree for partition of B Schedule properties items 2 to 31 into six equal shares.
Whether the sale deed dated 7 7 1958 by the 1st defendant in favour of the 12th defendant true, valid and binding on the plaintiff and is affected by LIS PENDENS ?
But, the voluntary sale to satisfy decretal amounts was executed after this date.
4 Def.
The trial companyrt take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken.
The liabilities incurred by Munisami, it was submitted, as karta of the family, had to be met, in any case, out of the properties which were the subject matter of the partition suit.
The learned Judge who heard the appeal by his order dated September 6, 1968 refused the leave on the ground that the leave was number asked for immediately on delivery of judgment and that it companyld number be asked for afterwards.
In the case of the sale for discharging dues under the Land Improvement Loans Act it was also companytended that they obtained priority .,over other claims, and, for this additional reason, fell outside, the scope of the principle of lis pendens.
137/1958.
Beg, J. Jayaram Mudaliar, the Appellant before us by Special Leave, purchased some lease hold land for Rs.
The deed of the voluntary sale for Rs.
K. Ramamurthi, Ramamurthy and Vineet Kumar, for res pondents Nos.
6,500/ .
Defendant No.
B7, and the revenue sale are all true and supported by companysideration and that the 12th defendant would be entitled to them, if these sales were number affected by the rule of lis pendens within the meaning of s. 52 of the Transfer of Property Act.
1 and 6 to 9.
B51 the High Court, relying on Ponnuswami v. Obul Reddy 1 held that Ex.
Defendant No.
The Trial Court and the Court of first appeal having held that the rule of lis 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.
12 moved the High Court by letter dated August 22, 1968 requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent.
The appellant had obtained a preliminary decree on 25 1 1956 in his suit and a final decree on 14 9 1957.
While this suit was pending, defendant No.
B7 was a case of voluntary alienation and was hit by lis pendens, as the sale was number in execution of a mortgage decree.
Whether the Revenue sale by the Collector dated 16 3 1960 is liable to be questioned by the plaintiff ?
He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant.
It protected the interest of the 12th defendant by stating that as far as possible the Commissioner appointed in the suit for division of the properties will allot to the plaintiffs share such of the properties which are number companyered by Exs.
were to go, towards settling a similar liability, and only Rs.
51.13 Ans.
521.11 Ans.
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.
2 of 1956 had been filed for principal and interest due on 27 5 1952 to the appellant who had obtained an attachment on 5 1 1956 of some schedule B properties.
The second sale was an involuntary sale for realisation of dues under the provisions of section 7 of the Land Improvement Loans Act 19 of 1883 which companyld be realised as arrears of land revenue.
On the facts stated above, the appellant Jayaram 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.
12 failed to ask for certificate orally and immediately after the judgment was delivered.
This was number affected by the institution of the suit for partition.
The following pedigree may enable us to appreciate the facts Muniappa Mudaliar Doraiswamy Mudaliar ChidambaraGovindaswamy Muda died on 4 9 1937 Mudaliarliar died 1940 wife 6th Def.
Is the suit without impleading the Government liable to be questioned by the plaintiff ?
He executed the sham and numberinal sale deed dated 7 7 1958 in favour of the 12th defendant to defeat the plaintiffs rights and to secrete the properties.
Before the High Court, in appeal by defendant No.
It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24 a and 24 b inserted.
The Judgment of A. N. RAY and M. H. BEG was delivered by BEG SIKRI C.J. gave a separate Opinion.
The Trial Court held that the sale deed, Ex.
2152 of 1968.
1173 of 1964.
Regarding Ex.
In respect of other properties, the doctrine of lis, pendens will apply.
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 numbershare in these properties.
The High Court held that Ex.
were paid in cash to the seller after deducting other amounts for meeting liabilities most of which were shown as debts to the purchaser himself.
Whether the plaintiff is entitled to question the, alienations in favour of the 12th defendant ?
The possession still companytinues to be with the 1st defendant on behalf of the joint family.
Leave to file a Letters Patent appeal was number asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, 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.
The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of this Honble Court on 23 6 1958.
But, the appellant, after obtaining certified companyies of the judgment and decree of the High Court, sent a letter to the Registry that the case be listed again for obtaining, a certificate of fitness to file a Letters Patent appeal.
There was numberhing in the sale certificate to show that the due for which properties were sold were of anyone other than Munisami individually.
10,500/ from Munisami Mudaliar and others under a 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.
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 number been made at the proper time.
10,5001/ showed that Rs.
