KALLAWA SHIDLINGAPPA ANGADI Vs. PARAPPA SANKAPPA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for a declaration that the suit properties were not liable for satisfaction of the decree passed in the defendant's favour in suit No. 77 of 1928 and for a permanent injunction restraining the defendant from proceeding against the suit properties in execution of the decree. The facts which led to the litigation are shortly these. There were three brothers Bashetteppa, Chinnappa and Shidlingappa. The last one is dead and his widow is the defendant. The three brothers formed a joint Hindu family. On March 3, 1928, the defendant filed an application in the nature of a suit to take a decree in terms of a private award between herself and the two brothers of her husband. In the award it was directed that the plaintiff therein was entitled to receive Rs. 66 per year as her maintenance from the two brothers and the amount of maintenance was fixed upon three specified family lands on which a charge was created for the same. A decree was passed in terms of the award on March 31, 1928, in that proceeding which was registered as suit No. 77 of 1928.

(2.) The plaintiff's father had purchased the three properties which were charged under the award decree from the two brothers on December 3, 1935, for Rs. 5,000. Out of that amount Rs. 4,000 were paid to a person who held a prior mortgage on these lands for Rs. 3,500. The present defendant had filed a darkhast, No. 653 of 1939, presumably the first darkhast, to execute her maintenance decree against the three charged lands. The plaintiff interceded in the execution proceedings and claimed that he had become the owner of the lands. That objection seems to have been overruled, with the result that the plaintiff filed the present suit for the declaration and injunction mentioned above. His case was that he was a bona fide purchaser for value without notice of the alleged charge of the defendant on the suit properties. The defendant's contention was that the plaintiff's sale-deed was hollow and that the plaintiff's father was not a bona fide purchaser because he was well-acquainted with the family of her husband's brothers. The learned trial Judge decided the suit against the plaintiff on the ground that it was not proved that his father was a bona fide purchaser for value without notice and that it was not proved that the purchase was free from the maintenance charge in favour of the defendant. The suit was accordingly dismissed. On appeal by the plaintiff, the Assistant Judge held that the plaintiff's father was a bona fide purchaser for value without notice of the charge and that therefore the suit lands were not liable to be sold in execution of the defendant's decree. He based his decision on the ground that the defendant was only a charge-holder of the suit lands and that charge, under Section 100 of the Transfer of Property Act, 1882, could not be availed of against the person who purchased the lands without any notice of it. The learned Judge relied on a decision of the Oudh Court in Mt. Indrani V/s. Maharaj Narain [1937], in which it was held that there was no difference in principle between a charge created by a decree and one created by a contract; and that the charge in the present case was governed by Section 100 of the Transfer of Property Act. This second appeal is filed by the defendant against the decree allowing the plaintiff's appeal.

(3.) Mr. Jathar for the appellant has based his argument on a point of law which was not urged in the two lower Courts, but we have heard him as it is a point of law which does not depend upon taking any new evidence. The point urged by him is that the sale in favour of the plaintiff's father was affected by lis pendens inasmuch as at the date of the sale the maintenance decree obtained by the defendant was enforceable against the judgment-debtors from whom the plaintiff's father had purchased the properties, and that therefore under Section 52 of the Transfer of Property Act the plaintiff cannot dispute the defendant's right created under her decree. It is further contended that if the plaintiff's right is barred by lis pendens, then it does not matter whether the purchase by his father was with or without notice of the defendant's charge. It is however urged that the finding of the lower Court that the plaintiff's father had no notice of the charge is erroneous. With regard to the latter point we are of opinion that there is no error of law in the finding made by the lower appellate Court. It is held that the plaintiff's father inquired from the brothers as to why the property was being sold and he found that a mortgage in favour of the Dharwar Bank was to be satisfied It is true that he knew the two brothers for some years prior to the sale, but it does not appear that the defendant was living with the two brothers and that there is nothing to show that the plaintiff's father was put upon his inquiry as to whether any charge was created on the properties for the defendant's maintenance. That being so, we think that the lower appellate Court was right in holding that the plaintiff's father had no notice of the defendant's charge.