DALAVAYI NARAYANA REDDY Vs. MUPPAGOUNI KADIREMMA AND OTHERS

JUDGEMENT

(1.) The plaintiff is the appellant. He instituted the suit under Order 21 Rule 63 C.P.C. He had filed unsuccessfully a claim petition in the proceedings in execution of a decree obtained by the respondents in O.S. No. 85 of 1956. The properly to which the suit relates originally belonged to the 4th respondent and the plaintiff claims under a sale deed dated 21-3-1950 from him. As there was a mistake in the sale deed as at first executed it was subsequently rectified by a rectification deed dated 10-8-1951, as a result of which it can be stated that the plaintiff became entitled to the items now in dispute. The 1st respondent is the wife and the respondents 2 and 3 are the daughters of the 4th respondent. On 7-1-1950 they commenced against the 4th respondent a suit claiming maintenance from him, later numbered as O.S. No. 85 of 1950, by presenting a petition for leave to sue him in forma pauperis. The petition was not opposed by the 4th respondent and was allowed by the court as a consequence of which the suit was registered on 4-4-1950. Further, the 4th respondent did not contest the claim. There was therefore a decree awarding maintenance to the respondents 1 to 3 which was charged upon properties belonging to the 4th respondent, the present suit items being among them. On 7-10-1951, the respondents 1 to 3 brought these items to sale in E.P. No. 243 of 1951 which was a proceeding in execution of their decree. Thereupon, the appellant filed a claim petition alleging; that he was a bona fide purchaser for value without notice of the suit and that; the property purchased by him cannot be affected by the charge created in favour of the respondents 1 to 3. That petition having been dismissed, the: appellant brought the present suit.

(2.) Instead of impeaching the decree in O. S. No. 85 of 1950 as having been brought about by collusion between the respondents 1 to 3 on the one hand and the 4th respondent on the other as he might well have done, the only basis upon which the plaintiff sought exemption from the charge was by claiming that he is bona fide purchaser for value without notice. If the charge in favour of the respondents 1 to 3 was validly, created, section 52 of the Transfer of Property Act applied and in the absence of proof that the suit was not a contentions proceeding, the plaintiff's rights must be manifestly subject to the rights of the charge-holders. The bona fides of his purchase is irrelevant.

(3.) It is argued however by Mr. Ghinnapa Reddy for the appellant that the claim of the respondents 1 to 3 for maintenance is in law only a claim against the person of 4th respondent and therefore no right to the immovable property in respect of which a charge was claimed can be said to be directly and specifically in question. I cannot agree with this contention. In the first place, the doctrine of lis pendens, (it seems to me,) has nothing to do with any rule of substantive law. In the second place, the rule of substantive law as formulated is not correct. If the plaintiff claims a charge over property specified in the plaint and ultimately obtains it, then it seems to me to be perfectly clear that a right to that property was directly and specifically involved in the suit. It is not denied and the rule has been established in a long course of decisions-that where the widow of a coparcener institutes a suit claiming maintenance from the surviving coparceners and seeks a charge in respect of the family property, a right to that family property is directly and specifically involved. It is true in one or two cases of the Madras High Court, single Judges took the view that there is a difference in regard to the applicability of the doctrine of lis pendens, between a suit for maintenance filed by a wife against her husband and a suit filed by a widow against her husband's coparceners. Vide Official Receiver of Cuddapah v. Kalawa Subbamma, AIR 1927 Mad. 403 and Rattamma v. Seshachalam Sarma, AIR 1927 Mad. 502. As pointed out by Bala krishna Ayyar J. in Subbayya v. Ramalakshmi, (1951) I MLJ 143 it is sufficient to say of Jackson J's decision in Official Receiver of Cuddapah v. Kolawa Subbamma, AIR 1927 Mad. 403 that in it "there is really no discussion of the principle involved" and appart from that it contains only an observation in the nature of Obiter. As regards that decision of Devadoss J. in Rattamma v. Seshachalam Sarma, AIR 1927 Mad. 502 , it must be held to have been overruled by the decision in Rajya Lakshmidevamma v. Subba Rao, AIR 1936 Mad.84 where Varadhachariar J. speaking for the Bench, pointed out that the judgment, of Devadoss, J., is opposed to the course of decisions "both in this presidency and elsewhere". It may be pointed out also that although the - wife has a right against her husband to claim maintenance irrespective of his possession of the property, it does not follow that she is not entitled to a charge in respect of any property that may be in his hands. The wife's right against her husband is of greater amplitude than that of a widow against her husband's coparceners. By describing the right of the wife as a right available against the person, it is not to be understood that she has no right against the property in his hands. Indeed, it has been pointed out in a recent decision of this court in Chandramma v. Venkatareddi, 1958 (I) An.W.R. 46 a wife is entitled to be maintained out of the profits of her husband's property and that her right is one which falls under the express terms of section 39 of the Transfer of Property Act. But, as I have already stated, it seems to me that the question of lis pendens is independent of the true nature of the right asserted by the plaintiff in the suit. If a plaintiff seeks a charge over property describes that property with sufficient precision and ultimately obtains a charge, it would be sufficient to attract section 52 of the Transfer of Property Act. I am therefore of the opinion that there is no substance in the contention raised by Mr. Chinnappa Reddy.