PROTAP CHANDRA GOPE Vs. SARAT CHANDRA GANGOPADHYA

JUDGEMENT

(1.) This is an appeal by the first, second and sixth defendants in a suit instituted under Order XXI, Rule 68 of the Code of Civil Procedure, The suit was dismissed by the Trial Court, but, on appeal, has been decreed by the Subordinate Judge. The facts material for the decision of the questions of law raised before us may be briefly outlined.

(2.) The subject matter of the litigation is an one-fourth share of Taluk Krishnananda Rudra, which admittedly belonged at one time to Madhab Chandra Das and Mahim Chandra Das; on the 13th March 1910 they conveyed it to Fulmala Dasi, the fifth defendant in this suit. On the 7th January 1914, the first two defendants, Pratap Chandra Gope and Kalimohun Gope, took a conveyance from Fulmala Dasi. On the 8th January 1914, the plaintiff, who held a decree for money against the third and fourth defendants, Rup Chandra Dutt and Sanatan Dutt, effected an attachment on this property on the allegation that though it stood in the name of Fulmala Dasi, the beneficial owners thereof were her father-in law Rup Chandra Datt and his brother Sanatan Datt. A claim was thereupon preferred under Order XXI, Rule 58, on the 27th January 1914 by the first two defendants, the Gopes, who had taken the conveyance from the fifth defendant Fulmala. The claim was investigated in due course and was allowed under Order XXI, Rule 60. The effect of this order was that the property was released from attachment. On the 8th June 1915 the plaintiff decree-holder instituted the present suit under Order XXI, Rule 63, with a view to set aside the order in the claim case and to obtain a declaration that the property was liable to be sold in execution of his decree against the Dutts, who were alleged to be its beneficial owners. The Gopes, the Dutts and Fulmala Dasi were all joined as defendants. On the 29th February 1916, the sixth defendant wan added as a party, as she had taken a lease from the Gopes on the 17th January 1915. The Court of first instance held on the evidence that, net the Dutts, but their daughter-in-law was the true owner of the property, which was consequently not liable to be seized in execution of a decree obtained by the plaintiff against the Dutts. The Trial Court further found that even if the Dutts were held to be the true owners, the plaintiff could not proceed against the property in the hands of the Gopes who were bona fide purchasers, for value without notice, from the ostensible owner. In this view, the suit was dismissed without investigation of the validity of the lease hold interest set up by the sixth defendant. On appeal, the Subordinate Judge has reversed this decision. He has held that as the Dutts and their daughter in-law were joint in mess, the presumption was that the property, which stood in the name of a female member in a Hindu joint family, belonged to the joint family and that she was merely the ostensible owner. The Subordinate Judge has farther held that the defendants had totally failed to prove that the purchase was made with the money of the daughter-in law. On these grounds, he has concluded that the Dutts were the real owners of the property. He has finally held that the Gopes were not bona fide purchasers for value without notice. In this view, the suit has been decreed, but, it will be observed, without examination of the position of the sixth defendant. The Gopes (the first two defendants) and the sixth defendant (the lessee from them) have now appealed to this Court, and have assailed the decision of the Subordinate Judge substantially on three grounds, namely, first, that the sixth defendant is not bound by the attachment, which the plaintiff seeks to enforce and which had no existence when the lease in her favour was granted; secondly, that the claim as against the sixth defendant is barred by limitation; and, thirdly, that the Subordinate Judge has incorrectly determined the question of title by the application of erroneous tests of presumption and burden of proof.

(3.) As regards the first point, the appellants have argued that the lease granted to the sixth defendant on the 17th January 1915 could not be affected by the attachment made at the instance of the plaintiff on the 8th January 1914, as the property was released from that attachment on the 13th June 1914. The respondents have not disputed that, if the matter were ret integra, the contention of the appellants might carry considerable weight, but they have argued that the point is really settled by a long line of cases decided during well nigh half a century. No doubt, the effect of an order under Order XXI, Rule 60, allowing a claim, is to make it obligatory on the Court to release the property from attachment; but the order of release is only provisional and is liable to be set aside by a regular suit, as expressly stated in Rule 63; in the words of Lord Hobhouse in Sardhari Lal v. Ambika Pershad 15 I.A. 123 : 15 C. 621 : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 : 7 Ind. Dec. (N.S.) 931, the order is not conclusive; a suit may be brought to claim the property, notwithstanding the order. The same idea was expressed by Lord Robertson in different terms when he stated in Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 6 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22. (P.C.) that the regular suit is "simply a form of appeal" and that the plaint therein is for "review of a summary decision." From this stand- point, it has been held that the order for release from attachment does not put an end to the attachment so as to leave the claimant free to deal with the property as he likes; if a suit is brought by the decree-holder to establish his right to attach the property and a decree is passed in his favour, the effect of the decree is to set aside the order of release and to maintain uninterrupted the attachment originally made. The result is that any private transfer of the property by the claimant, though made after an order under Rule 60 releasing the property from attachment, will be void under Section 64, if the right to attach is subsequently established by a suit under Order XXI, Rule 63, This is clear from the judgment of Sir Richard Couch, C.J., in Mahomed Warris v. Pitambar Sen 21 W.R. 435, where he observed as follows : a suit was brought and the plaintiff obtained a decree establishing his right, namely, a right to attach the property, showing that the order for the release of the property from attachment was improper. The effect of that decree must be to revive the attachment, or rather not to revive the attachment, but to set aside the order of release which had been made, and, therefore, to make the property still subject to the attachment, to restore the state of things that had been disturbed by the order of release," The same view was adopted by Macpherson and Hill, JJ., in Bonomali Rai v. Prosunno Narain Chowdhry 23 C. 829 : 12 Ind. Dec. (N.S.) 551, who relied in addition to the judgment of Couch, C.J., on the decision in Lalu Mulgi Thakur v. Bashi Bai 10 B. 400 : 5 Ind. Dec. (N.S.) 655, The Rule thus enunciated was applied in Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158 : 10 C.W.N. 978. The same view has been uniformly accepted by the Allahabad High Court; Bank of Tipper India v. Sheo Prasad A.W.N. (1897) 124 : 19 A. 482 : 9 Ind. Dec. (N.S.) 311; Alt Ahmad Khan v. Bansidhur 1 Ind. Cas. 951 : 31 A. 367 : 6 A.L.J. 484; Aziz Bux v. Kaniz Fatima 15 Ind. Cas. 49 : 84 A. 490 : 10 A.L.J. 48; Gopal Prasad v. Kashinith 52 Ind. Cas. 343 : 42 A. 39 : 17 A.L.J. 901. A similar view has been recently adopted by the Madras High Court in Krishnappa Cheity v. Abdul Khader Saheb 25 Ind. Cas. 11 : 38 M. 535 : 26 M.L.J. 449, although some of the reasons assigned there, specially as to the applicability of the doctrine of lis pendens, may be open to comment. See Pethu Aiyar v. Sankaranarayana Pillai 88 Ind. Cas. 778 : 40 M. 955 : 32 M.L.J. 374 : (1917) M.W.N. 284 : 5 L.W. 519 : 21 M.L.T. 377. We are not prepared to dissent from the interpretation which has thus been put by all the High Courts on the relevant provisions of the Civil Procedure Code, 1908, and the corresponding provisions of the earlier Codes. It is significant that notwithstanding the construction placed upon the provisions of the Code of 1859, they have been reproduced by the Legislature in the successive Codes without material alteration. The inference may thus be legitimately drawn that this constitutes a legislative affirmance of the construction adopted by the Courts. Jogendra Chandra Roy v. Shyam Das 1 Ind. Cas. 168 : 36 C. 543 : 9 C.L.J. 271.