RAMCHANDRA GURURAO JOSHI Vs. KAMALABAI SHESHAGIRIRAO SARATHI

JUDGEMENT

(1.) THIS appeal arises in execution proceedings of a decree for past as well as future maintenance obtained by Ambabai, a widow, against the defendants. It is a compromise decree under which certain properties having fallen to the share of the different defendants were separately charged for the amount of the widow's maintenance. We are only concerned in this litigation with one property, Survey No.3, at Shinganapur, which in the division of the defendants' family came to the share of the first defendant and which according to the plaintiff-widow has been charged for her maintenance. THIS property has been purchased during the pendency of the suit from the first defendant by the present appellant who was not a party to the suit but who was made a party in the execution proceedings as opponent No.4. THIS purchase took place on September 8, 1921, after the suit was filed on June 30 of the same year. On September 13, 1922, there was a compromise between the parties and on September 20 a decree was drawn up in terms of the compromise. The material portion of the decree is that " out of the amount of maintenance, defendant No.1 is liable to pay Rs. 57, which shall be the amount of his share, and to the extent of this sum the property of his share is subject to the charge." There is no doubt, and it is conceded, that Survey No.3 fell to his share in the partition. There is, therefore, no question of the liability of defendant No.1. But the appellant's case is that, although he purchased it during the pendency of the suit, the plaintiff has no right to proceed against it for several reasons.

(2.) IT was firstly contended that there was no charge created upon that survey number because the compromise upon which the decree proceeded was to the effect that the property in possession of the defendants was to be charged and that at the time of execution this property was not in the possession of the first defendant but had come to the appellant's possession as purchaser. Secondly, the decree was not definite in creating a charge on this particular property because it only stated that the property of defendant No.1's share was subject to the charge without mentioning this particular property. Thirdly, it was contended that the charge was not binding on the appellant because he was a bona fide purchaser for value without notice of the charge and, lastly, it was urged that the appellant had purchased the property from defendant No.1 to pay off the latter's mortgage debt and that therefore he was entitled to be subrogated to the position of the mortgagee, and that debt being paramount to the widow's charge for maintenance, the property in the appellant's hands was not liable to be sold in execution of the decree. A1I these contentions have been repelled by both the lower Courts, and it is ordered that execution should proceed against the property.

(3.) IT is the third contention urged by Mr. Desai on behalf of the appellant that has some importance. The contention is that all that the decree created was a charge on the property and that the decree-holder is, therefore, merely a charge-holder and nothing more. Section 100 of the Transfer of Property Act provides that save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. The argument is that Section 52 must be read along with Section 100 and as controlled by it with the result that even though a charge may be created in favour of the plaintiff the latter cannot proceed against the charged property purchased pending the suit by a person who was not aware of the creation of the charge. Indeed, in such a case the purchaser would never have notice of the charge at the time of his purchase during the pendency of the suit because ex hypothes the charge would be created by the decree. The contention, therefore, amounts to this that whenever a property is sold pending the litigation and thereafter a charge is created in the decree, the charge is in all cases not binding on the transferee because at the date of his transfer he would have no notice of the charge which is going to be imposed in the decree. If this argument is correct, the plaintiff will have no remedy against the property in the hands of the appellant. But we do not think that that is the correct legal position. The underlying principle of Section 52 of the Transfer of Property Act is that no immoveable property which is the subject-matter of the litigation can be transferred or dealt with by any party to the suit to the detriment of the other party. The decree may be for possession or sale of the property or it may only create a charge on the property. But whatever the nature of the decree, it is binding on the person to whom the property is transferred during the litigation. If the decree created a charge, that charge is in all cases binding on the transferee, and the question of notice is immaterial. Section 100 of the Transfer of Property Act saves any other express provision of law. Moreover, that section would apply only when the transferee takes the property without notice of the charge, in other words, the charge must have been created before and the transfer must have taken place after the creation of the charge. But in the case of a transfer during the pendency of the litigation, the position would be the reverse. The transfer would necessarily take place before the charge is created in the decree. IT is difficult to see, therefore, how the provisions of Section 100 would apply to a case of transfer during the pendency of a litigation. That section is a general provision relating to a charge and it provides, among other things, that a transferee after the charge would be affected only if he has notice of the same. IT does not provide as to what might happen if the transfer takes place before the charge is created. Such a case when it happens pending the suit is covered by Section 52, under which the transfer cannot take place to the detriment of the person in whose favour the charge is created.