But, the voluntary sale to satisfy decretal amounts was executed after this date.
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 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.
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.
Both Jayaram and Munisami, mentioned above, were impleaded as companyefendants 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.
12, the only point companysidered was that of lis pendens.
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.
The mortgage itself was brought about to defeat any rights.
7 Def, 3 Def.
The sale, is also hit by the rule of lis pendens.
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.
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.
companyered items 4, 18, 20, 23 to 27 and 31.
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.
Defendant No.
B51 was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property described in the certificate for Rs.
It is the 1st defendant that companytinues to be in possession even number.
This finding was affirmed by the first Appellate Court and was number touched in the High Court.
7375.11/ Ans.
3 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 .
The possession still companytinues to be with the 1st defendant on behalf of the joint family.
There was numberpublication.
The property is stated to have been sold for pumpset arrears under Hire Purchase System due by Muniswami Mudaliar.
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.
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.
It was urged that where properties are liable to be sold for payment 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.
The following pedigree may enable us to appreciate the facts Muniappa Mudaliar Doraiswamy Mudaliar Chidambara Govindaswamy Muda died on 4 9 1937 Mudaliarliar died 1940 wife 6th Def.
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.
Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ?
The alleged sale deed is number supported by companysideration.
137/1958.
There was numberhing in the sale certificate to show that the due for which properties were sold were of anyone other than Munisami individually.
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.
While this suit was pending, defendant No.
Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties ?
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.
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.
B7 in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7, 1958.
It also does number and cannot companyfer any rights on the 12th defendant.
died pending Annammal 10th Def.
Additional issues were framed in the suit.
It is stated in the judgment of the Trial Court that Jayaram Mudaliar .got himself impleaded as 12th defendant.
The appellant had obtained a preliminary decree on 25 1 1956 in his suit and a final decree on 14 9 1957.
51.13/ Ans.
2 Def.
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.
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.
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.
4 Def.
The Trial Court passed a preliminary decree for partition of B Schedule properties items 2 to 31 into six equal shares.
In respect of other properties, the doctrine of lis pendens will apply.
They read 24 a The 12th defendant is a close agnate of the son in law of the 1st defendant.
It protected the interest of the 12th defendant by stating that as far as possible the Commissioner to be 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.
9 Mudaliar 1st Def.
Jayaram Mudaliar alinee of Def.
Whether the Revenue sale by the Collector dated 16 3 1960 is liable to be questioned by the plaintiff ?
is affected by LIS PENDENS ?
B 7 and B 51.
The Trial Court held that the sale deed, Ex.
On June 23,1956 Ayyaswami Plaintiff filed a pauper petition No.
The 12th defendant never got into possession of any property.
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.
This Court granted special leave.
Is the suit without impleading the Government liable to be questioned by the plaintiff ?
Before the High Court, in appeal by defendant No.
In 1955, an original suit No.
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.
Exhibit B 51.
were to go towards settling a similar liability, and only Rs.
6,500/ .
The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of this Honble Court on 23 6 1958.
suit Muniswami Ayyaswami Def.
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.
by the 1st defendant in favour of the 12th defendant true, valid and binding on the plaintiff and.
256 held that Ex.
B51 the High Court, relying on Ponnuswami v. Obul Reddy A.I.R. 1939 Mad.
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.
Mudaliar died pending suit Plaintiff Def.
It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24 a and 24 b inserted.
The High Court held that Ex.
B7 was a case of voluntary alienation and was hit by lis.
As it had number been companysidered whether all the properties which were sold in revenue sale and companyveyed under Ex.
B51 were affected by the rule of lis pendens.
The original suit No.
Defendant No.
B51 would number be affected by lis pendens, as the loans were granted under the Land Improvement Loans Act to the extent that the loans were taken for the improvement of the properties.
Whether the sale deed dated 7 7 1958.
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.
Regarding lis pendens he held that the purchases under both Ex.
5 12th Def.
Regarding Ex.
pendens, as the sale was number in execution of a mortgage decree.
Whether the plaintiff and other members became divided from the 1st defendant after 1939 ?
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.
24 b The revenue sale is brought about companylusively and fraudulently.
He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant.
All these events had taken place before .the institution of the partition suit on 23 6 1968.
538.5/ Ans.
662.9/ Ans.
1250.0.0/ was left to pay off and liquidate the balance of a debt due to one Thiruvenkata Pillai from Munisami, Rs.
521.11 Ans.
3,000/ income tax and for discharging a debt and a pronote in favour of a man called Mudali.
B51 were lands for the improvement of which loans were taken, the High Court directed 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.
12 failed to ask for certificate orally and immediately after the judgment was delivered.
These properties companyprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale Ex.
We are only companycerned with issues 3 and 4 above.
B7 and Ex.
1 Muniswami Mudaliar and four of his sons executed a sale deed Ex.
Following additional issues were raised out of the pleadings of the 12th defendant Whether the plaint B Schedule properties are joint family properties ?
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 District Judge companyfirmed the decree.
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 Section 52 of the Transfer of Property Act.
In any event on the date of the alleged sale deed dated 7 7 1958 the mortgage decree debt was number subsisting.
It was number acted upon.
It is companymon ground that these properties, were included in the B Schedule mentioned in the plaint.
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.
To what equities, if any, is the 12th defendant entitled ?
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.
H. Beg, 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 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.
With this modification the High Court dismissed the appeal.
