NATHUSINGH RATANSINGH Vs. ANANDRAO LAXMANRAO KUNBI

JUDGEMENT

(1.) THIS appeal arises out of a suit to enforce a mortgage which was executed by Ratan Singh, defendant 1, on 23rd July 1930. The other defendants, who are the wife and minor son of Ratan Singh, claimed that they separated from Ratan Singh before the date of the mortgage and-that their shares in the property are not bound by the mortgage. The lower Appellate Court, differing from the trial Court, held that the entire property was bound by the mortgage. The facts are not in dispute; On 28th February 1930 Ratan Singh's minor son through his next friend filed a plaint in the Court of the Second Additional District Judge, Nagpur, in which he asked for partition. The defendants in that suit were his father and mother. That suit was returned by the Court on 4th October 1930 for presentation in the proper Court, and it was presented some time in 1931 in the Court of the Additional Subordinate Judge of the First Class. Later, that Court decided that it was for the benefit of the minor that there should be a partition and passed a preliminary decree for partition, allotting a third share in the family estate to each of the parties in that suit.

(2.) IT will be observed that the mortgage was executed while proceedings were going on in the wrong Court. In Ma Than v. Maung Ba Gyan (1927) 14 AIR 145 it was held in somewhat similar circumstances that there was only one suit instituted. That case has been criticised in Gouri Dutt v. Shanker AIR 1933 Sind 117. Order 4, Rule 1, Civil P.C., states that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf, and the Explanation to Section 3, Limitation Act, provides that a suit is instituted in ordinary cases when the plaint is presented to a proper officer. The Courts of the Additional Subordinate Judge of the First Class and of the Second Additional District Judge were entirely different Courts, and in my opinion, a suit could not be instituted in the former Court by presentation of a plaint in the latter Court. A plaint that is properly presented and then transferred to another Court stands on quite a different footing. Here there was a gap of two months in which there was no plaint before any Court. The suit therefore that culminated in a decree for partition must be deemed to have been instituted some time in 1931.

(3.) IT has been contended that the doctrine of lis pendens, as enunciated in Section 52, T.P. Act, applies. The mortgage was executed after Section 52 was amended by the Transfer of Property (Amendment) Act, 20 of 1929. The only order that was made in the proceedings pending at the time when the mortgage was executed was an order that the plaint should be returned for presentation in a proper Court. The suit in which the decree for partition was passed was not instituted until after the mortgage was executed, and therefore the doctrine of lis pendens cannot apply. The appeal there-fore fails and is dismissed with costs. Counsel's fee Rs. 60. (Leave to appeal was refused.)