KARUNAKARAN PILLAI Vs. KESAVA PILLAI

JUDGEMENT

(1.) This is an appeal against a judgment and decree of the Parur District Court setting aside a revenue sale. Plaintiff who is Respondent 1 in the appeal has been allowed to recover the property sold with past and future mesne profits. Defendant 2 the purchaser at the revenue sale has brought this appeal. The State who was Defendant 1 in the suit is Respondent 2 here. The circumstances that led to the institution of the suit are set out in paragraphs 2, 3 and 4 of the Trial Courts judgment in the following terms:-

(2.) Both the defendants, the State as also the purchaser contested the suit and though the sale was impeached on various grounds the lower court repelled all those grounds except one. The ground which found favour with the learned Judge was that the revenue sale was vitiated by the doctrine of lis pendens in so far as it was held during the pendency of O.S. 761/112. The learned Judge felt bound to follow the decision in Janaki Amma v. The Diwan of Travancore - 1949 Travancore Law Reports 36 - where a Division Bench composed of Krishna Pillai, C.J. and Mr. Justice Habeeb Mohamed had held that the doctrine of lis pendens applies both to voluntary and involuntary sales including revenue sales. In repelling the other grounds urged to impugn the sale the lower court not only found that there were no irregularities but also that the plaintiff was aware of the transfer of the registry in the name of the karnavan of the rival branch so early as 1114 and that he was also aware that the tax was in arrears for 1115 and 1116. Notwithstanding those findings, on the authority of the decision referred to the plaintiffs suit was allowed, the only variations made with respect to the reliefs claimed in the plaint being that the rate of mesne profits was reduced to Rs. 2/- per year and that the parties were directed to bear their respective costs.

(3.) The sole question for our decision in this appeal is whether the principle of lis pendens can be extended to affect sales by revenue authorities for realisation of land revenue assessment on the property. The rule of lis pendens is contained in S.52 of the Transfer of Property Act, 1882 and though that Act is not law in Travancore its principles have invariably been adopted by courts in that State when questions covered by its provisions came up for decision. Even in jurisdictions where the Transfer of Property Act is in force it is settled law that the section as such does not apply to involuntary sales though the principle underlying the rule embodied in the section applies to such alienations as court sales etc. The inhibition of the section is only against any of the litigant parties dealing with the property forming the subject of the litigation so as to affect the rights of any other party thereto under any decree or order which may be made therein. In Mullas Commentaries (3rd Edition) to S.52 it is pointed out at page 253 that the extension of the principle to involuntary alienations is the effect of three Privy Council cases. ILR (1885) 12 Calcutta 414; ILR (1888) 15 Calcutta 756 and ILR (1897) 25 Calcutta 179 and of an overwhelming mass of authorities both before and after the pronouncements of the Privy Council. The position regarding the application of the principle to compulsory sales for recovery of Government dues is set out with clarity in Chitaleys Commentaries on the Transfer of Property Act (3rd (1950) Edn.) at pp. 731 and 732 as follows:-