NAND KISHORE Vs. LALLU

JUDGEMENT

(1.) This is a Letters Patent appeal brought by the plaintiffs against the judgment of a learned single Judge of this Court dismissing their appeal and confirming the decrees of the two lower Courts. The family of the plaintiffs is as follows:

(2.) By a plaint filed on 16 February 1916, and registered on 18 December 1916, Raja Ram and Sheo Parkash brought a suit for partition (No. 7 of 1916) against the other members of the family. Subsequently there was a second suit for partition, No. 3 of 1918, brought by Nand Kishore which was filed on 18th December 1917. These two partition suits were tried together and a preliminary decree was passed on 6 April 1921, and a final decree on 19 September 1921. A few days after registration of the first partition suit brought by Raja Ram and Sheo Parkash, Lalta Prasad got a simple money decree against Bhawani Prasad and his son Ram Kishore on 22 December, 1916. This was in connexion with a business which was in the name of Ram Kishore alone and the name of Bhawani Prasad his father was subsequently added to the suit and a decree was given against both. On 28 August 1918, attachment was made of house No. 95 with which the present suit is concerned, and an objection was made by the present plaintiffs to the effect that the property attached was joint ancestral family property; that these suits for partition of the entire family property were pending, and that the attachment should be released, but if that prayer be not granted that this objection be postponed until determination of the two. partition cases. When the objection came . on for hearing, the vakil for the decree-holder stated that he only desired auction-sale of the right and share of the two judgment-debtors Ram Kishore and Bhawani Prasad. The vakil for the objectors admitted that the two judgment-debtors had a share in the attached property but he wanted the sale postponed for two months. The objections were disallowed, and the house in dispute in its entirety was put up for sale and purchased on 2 June, 1919, by Kedarnath father of the defendants who obtained formal possession on 5th November 1919. Kedarnath had been a tenant of the house since 1905 on a monthly rent of Rs. 17 to the joint family of which the plaintiffs were then members. In the final decree in the partition suit on 19 September 1921, the whole of the house in dispute was allotted to the four plaintiffs in equal shares, one-fourth to each plaintiff, that is, it was alloted to the branch of Bhawani Prasad and his sons with the exception of Bhawani Prasad and his son Ram Kishore who were judgment-debtors in the case of Lalta Prasad. The present case has been brought by the plaintiffs for arrears of rent from 1 August 1921 to 31 August 1924. Various grounds were taken in defence in the written statements, but the present ground with which we are concerned is that, as found by both the lower Courts, the defendants were not liable for the one-third of the rent owing to the purchase at the auction-sale by the father of the defendants, Kedarnath, of the shares of Bhawani Prasad and Ram Kishore. The question which has been argued before us is, whether owing to the rule of lis pendens contained in Section 52, T. P. Act, that purchase by Kedarnath was null and void as against the rights ,of the plaintiffs. It is clear that the auction-sale was made while both partition suits were pending. The view taken by the two lower Courts was that Section 52., T. P. Act, would not apply, because the partition suit No. 3 of 1918 was not contentious as Bhawani Prasad and Ram Kishore did not contest it, and the rights of Bhawani Prasad and Ram Kishore to a share in the house in dispute was not in question in that suit.

(3.) In addition to the house in dispute there was also a grove and the same decree-holder Lalta Prasad attached and purchased that grove himself. In the partition that grove was allotted to the share of Sheo Parkash, the cousin of the present plaintiffs. A suit was brought in regard to that grove and came before this Court in First Appeal No. 297 of 1924 decided by a Bench of this Court on 1st December 1927. In that suit it was held that Sheo Parkash could recover the grove. The basis of the decision was that Section 52, T. P. Act, applied and the auction-purchaser there- fore did not obtain rights which were valid against Sheo Parkash to whom the grove had been allotted in the partition suit which was pending at the time of the auction-purchase. The learned Judge of this Court alludes at some length to First Appeal No. 297 of 1924 and he distinguishes the second appeal in the present case on various grounds. He held that the present appeal was different and he went on to state: The appellant has not even argued in second appeal that the doctrine of lis pendens is applicable.