Whether decree binding on alienee — Rights of purchaser in final decree proceedings. As there was already a suit for partition filed by the plaintiffs including the suit schedule premises and during the pendency of that suit the alienation in favour of Jayamrna took place and to that suit for partition, Jayamma and Kambaiah both were the parties, the necessity of directing the purchaser to file a suit for general partition does not arise because there cannot be two suits for general partition between the same parties in respect of the very same property. Whatever the decree that is passed in O.S. No. 18 of 1965, Jayamma, Kambaiah and also the present appellant are bound by it. Section 52 of the Transfer of Property Act specifically provides that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Therefore, the validity of such alienation would depend upon the decree that may be passed in the suit during the pendency of which the property concerned in that suit is alienated. In the final decree proceedings, the defendants in the present suit are entitled to be notified and they are entitled to put forth their claim that they being the alienees of some of the coparceners, in equity the suit schedule premises be put to the share of the alienating coparceners. If the defendants put forth such a plea on the notice being served on them the court seized of the final decree proceeding shall also afford an opportunity to the plaintiffs to put forth their say in the matter and decide the issue as to whether the defendants herein, in equity are entitled to have the suit schedule premises allotted to the share of the alienating coparceners. In the event the court allots the suit schedule premises to the alienating coparceners the plaintiffs will not be entitled to the possession of the suit schedule premises. — Smt. Mallamma V/S B.S. Venkataram (Since deceased by L.Rs.) and Others, 1991(4) Kar. LJ. 526B (DB): ILR 1991 Kar. 2761 (DB).


If by a subsequent amendment certain property is included in a plaint and before that amendment had been made the newly included property had already been purchased by a bona fide purchaser for value without notice, the doctrine of lis pendens will have no application to such a case. — B.R. Rangaswamy and Others v Upparige Gowda, 1962 Mys. LJ. 384: ILR 1962 Mys. 312.


Where there were two agreements of sale executed by the owner of a property and he executed a sale pursuant to the earlier agreement during the pendency of a suit for specific performance of the second agreement, the sale in favour of the earlier transferee executed during the pendency of the suit for specific performance is affected by the doctrine of lis pendens. A suit for specific performance is a suit in which a right to immovable property is directly and specifically in question. When a decree for specific performance is passed transferring title to the plaintiff, that title does not relate back to the date of the agreement on which the suit is based. — Khajabi (deceased) by L.Rs v Mohammad Hussain, 1964(1) Mys. LJ. 236. Appellant purchased suit property during pendency of suit against first defendant — Held, purchaser bound by decree against first defendant — Case-law discussed. — M/s. Chitalia Brothers v The South Indian Bank, 1987(2) Kar. LJ. Sh. N. 225 (B): ILR 1987 Kar. 1242.

Karnataka Land Reforms Act, 1961, — Transfer pendente Suit — Invalidity of — Applicability of provision to lease of agricultural land made during pendency of suit for declaration and possession — Where suit is decreed granting relief claimed therein, decree is enforceable, not only against person against whom decree has been passed and whose status has been declared as that of trespasser, but also against person claiming to be tenant under trespasser — Overriding effect provided to Karnataka Land Reforms Act is only over provisions of Sections 105 to 117 falling under Chapter V of Transfer of Property Act, and does not affect operation of Section 52 of Transfer of Property Act. Held: In this case, there is no conflict between any provision of the Land Reforms Act and Section 52 of the Transfer of Property Act. Even otherwise, all that sub-section (2) of Section 3 deals with the overriding effect
..of the provisions of the Land Reforms Act so far as they relate to Chapter V of the Transfer of Property Act only. It needs hardly be said that Section 52 of the Transfer of Property Act does not come within Chapter V of the Transfer of Property Act. . .. The petitioner's possession of the property during the pendency of the suit for possession instituted by the respondent cannot avail to support a claim of deemed tenancy as the claim is hit by Section 52 of the Transfer of Property Act. If Kallappa had no semblance of title to the property he could hardly confer a better title to the petitioner in this case. — Revanappa v Muniyappa (Deceased) by L.R. and Others, ILR 1998 Kar. 3021.

Karnataka Land Reforms Act, 1961, Section 138 — Lis pendens — Principle of — Applicable to agricultural leases also — Principle is not abrogated by non obstante clause of Section 138 of Karnataka Land Reforms Act — Suit for specific performance of agreement to sell agricultural land constitutes lis pendens and transferee pendente lite is bound by order passed against his transferor — Tenancy created by transferee pendente lite does not bind decree-holder who is entitled to possession in execution. Such of the provisions of the Transfer of Property Act which are not inconsistent with the provisions of the Land Reforms Act are not barred from their applicability to the matters and proceedings covered under the Land Reforms Act. In that view of the legal position, Section 52 of the Transfer of Property Act very much operates against alienation of agricultural land which is the subject of tenancy claim by any person before the Land Tribunal. .... A plain reading of Section 52 of the Transfer of Property Act makes it clear that any party to a pending suit or proceeding which is not collusive is prohibited from transferring any right to an immoveable property which is directly and specifically in question and is the subject of such suit or proceeding so as to affect the rights of any other party thereof which may be acquired by him under any decree or order ultimately passed or made therein. Explanation to Section 52 makes it further clear that pendency of a suit or proceeding shall deem to commence from the date of presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction and to continue until the suit or proceeding had been disposed of by a final decree or order and till complete satisfaction or discharge of such decree or order. Thus Section 52 creates a clear bar on transfer of any immoveable property which is the subject of a suit proceeding by any party thereto so as to affect the right of the other party which he may ultimately acquire under a decree. — Smt. Siddarajamma v The Land Tribunal, Tarikere and Others, 1999(1) Kar. L.J. 682A, Lease by manager pending final decree partition proceedings is affected by lis pendens. — Manjunatha Gopalakrishna v Venkataramanakrishna, 1973(2) Mys. L.J. Sh. N. 304.

1st defendant obtained a decree on a mortgage in 1923 against 2nd defendant and purchased the property in 1929. In a suit between plaintiff and 2nd defendant in 1920 questions relating to the suit properties were in question but by consent those claims were dismissed and plaintiff ultimately obtained a money decree and in execution purchased the suit properties, in January 1930. Held, the mortgage in favour of 1st defendant and proceedings subsequent were not affected by lis pendens. No right at all in respect of the property was declared in favour of plaintiff. Hence, plaintiff could not plead lis pendens in respect of a mortgage executed before plaintiff made his purchase in January 1930. — Dhanvar Finance Corporation v Dattobarao, ILR1973 Mys. 735.


Lis pendens —The doctrine of lis pendens is basically a provision to deter or prohibit any mischievous private transfers in the course of legal proceedings and it would also come in the way of any other*transfers but that doctrine has no application on the facts of the present case which concern a Court execution. — Has no application to execution sale of immovable property, which is also subject-matter of contract for sale between judgment-debtor and intending purchaser — Party entitled to purchase under contract for sale has no locus standi to apply for cancellation of execution sale claiming benefit under doctrine of lis pendens, as no right in property accrues to him under such B.M. Manjunatha Gupta v M.G. Shivanagouda and Others, 1997(1) Kar. L.J. 415C.


Suit not collusive at inception, but parties thereto subsequently coming to compromise for purpose of defeating right of bona fide transferee pendente lite — Decree passed in terms of compromise — Doctrine, held, will not apply. Section 52 of the Act will not wipe out the effect of a sale validly executed by the person who has the authority to sell pendente Site but it is only to subordinate the rights based on the decree in the suit. As between the seller and the purchaser, the transaction is perfectly valid and operates to vest a title in the purchaser. . . . Thus one of the important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character. .... The doctrine of lis pendens being essentially a doctrine of equity, and fraud and collusion, being antithesis of equity, cannot be encouraged by Courts nor any decrees obtained by fraud or collusion can defeat the rights of the alienees of immovable property. .... Certainly the doctrine has no applications, in all cases where the very suit is instituted by collusion between the parties so also it does not apply to compromise decrees obtained by collusion or by fraud. . . . Appellate Judge has in detail considered the evidence and has found as a matter of fact, collusion between the plaintiff and defendants to the appeal R.A. Nos. 16 and 17 of 1979 in entering into the compromise and obtaining a decree thereunder. The reasoning of the Appellate Court on this finding cannot be faulted. .... The Appellate Court was right in holding that the alienations made by defendant 6 in favour of defendants 1, 4 arid 5 are not hit by the doctrine of lis pendens. — Ramanagouda Siddanagouda Biradar and Others v Basavantraya Madivalappa Mulianumi and Others, 2001(6) Kar. L.J. 545.

Where a mortgage of a family property was created before the institution of a partition suit, a sale in execution in enforcement of the mortgage pending partition suit, is not affected by the doctrine of lis pendens. A mortgagee becomes a transferee of the interest in the imrnoveable property on the date of mortgage and acquires on that date the right to sell the mortgaged property for the recovery of the debt. Neither the institution of the suit nor the sale in execution of the mortgage decree, can fall within Section 52 of the Transfer of Property Act, since such a sale.does not involve a transfer of property. In bringing the suit property to sale, the mortgagee does no more than to enforce a right which had come into being long before the other suit was commenced. Similarly, where family properties were attached by creditors long before a partition suit was commenced, the partition suit which was subsequently instituted cannot to any extent affect the rights of the creditors in the earlier suits to enforce their rights which had accrued to them very much before the partition suit was commenced. — Kamalamma v K. Srinivasa Rao, 1966(1) Mys. L.J. 451.

A Final mortgage decree was passed on 9-11-1937 and the mortgagee decree-holders purchased the properties in execution sale. While applying for possession it was discovered that while the properties had been described properly with reference to the boundaries, the survey numbers were wrongly given. Therefore, the decree-holders applied for amendment of the plaint, the schedule to the decree and the sale certificate, and they were amended on 25-7-1954. Meanwhile appellant got the properties attached in execution of a money decree against the mortgagor and purchased them in execution on 22-11-1939. Held, the purchase of the properties in execution of the money decree by appellant subsequently to the passing of the final decree in the mortgage suit was affected by the doctrine of lis pendens. The attachment by appellant did not create any right over the properties attached and hence there was no need for the mortgagees to implead appellant as a party either to the proceedings in the mortgage suit, or the subsequent sale or in the proceedings relating to the amendment of the schedule. — Katta Nagappa Setty v H.L. Lingaraj Urs, 1964(2) Mys. LJ.l.

One K mortgaged with possession the suit properties on 12-12-1929 in favour of W. In execution of a money decree against K, W purchased the equity of redemption and the rights of K came to be vested in defendants 1 and 2. The representatives of K filed C.S. No. 200 of 1947 under Section 16 of the Jamkhandhi Agriculturists' Relief Act, 1939 against W and his assignee for accounts in respect of the 1929 mortgage. The suit O.S. No. 200 of 1947 was dismissed by the Trial Court; but on appeal in C.A. No. 267 of 1959, the case was remanded for fresh disposal. After remand, the Trial Court drew up a preliminary decree for redemption holding that the mortgage stood discharged and the final decree was passed on 11-4-1962 and the plaintiffs were put in possession of the properties on 15-4-1962. Defendants 1 and 2 did not contest the appeal and also the suit after remand.
Defendants 1 and 2 executed a mortgage of the properties on 10-8-1953 and the mortgagee obtained a final decree for sale therein. Plaintiffs filed the present suit for declaration that the decree obtained on the mortgage executed by defendants 1 and 2 in 1953 was not binding on them.
(1) Having regard to the allegations in the plaint and the written statement in C.S. No. 200 of 1947, title to the equity of redemption was directly and specifically in question even on the date when the suit was instituted for accounts and therefore the mortgage deed of 1953 was affected by lis pendens. The proceeding commenced under Section 16(1) of the Jamkhandi Agriculturists' Relief Act ending with a decree for redemption should be considered as a single proceeding and the ultimate relief granted by the Court under sub-section (3) should be held to relate back to the date on which the litigation was commenced, and all transactions entered into in respect of the immovable property by persons who are parties to the said suit after the commencement of the litigation must be held to be subject to the final result of the litigation. The question for decision in C.S. No. 200 of 1947 was whether the mortgage debt had been discharged or not, and whether mortgagor had the right of redemption or not. Both the questions related to the mortgagor's right to property and arose directly for decision in that suit. They cannot be considered as collateral matters.
(2) The Court, while applying Section 52 of the Transfer of Property Act, cannot be calied upon to decide whether the decision in the former case was correct or incorrect. Hence, the question whether the Court could have granted' the declaration that the sale in execution of the money decree was a nullity could not be gone into.
(3) Apart from the fact that defendants 1 and 2 remained absent when the appeal in C.A. No. 267 of 1959 was heard, there being no other evidence of collusion, collusion was not established.
(4) The judgments in C.S. No. 200 of 1947 and C.A. No. 267 of 1959 were admissible for the purpose of Section 52 of the Transfer of Property Act. The judgments were proceedings admissible both under Sections 40 and 43 of the Indian Evidence Act.
(5) If the plaintiffs were right in their contention that the mortgage executed pending their suit did not affect their rights, it was unnecessary for them to adduce further evidence regarding the title to the suit properties. — Narayan Govind Anikhindi v Krishnaji, 1973(2) Mys. L.J. 176.


S. 52 —Partition suit — Widow claiming maintenance — Amendment of written statement by widow claiming share — Defendant transposed as plaintiff — Sale after suit but before transposition of parties — If affected by lis pendens. One co-sharer instituted a suit for partition and in that suit a co-sharer's widow claimed maintenance. She obtained an amendment of her written statement and in place of maintenance, she prayed for a share in the suit property as the heir of her deceased husband and was transposed as plaintiff in the suit and the original plaintiff was transposed as defendant. The alienation in favour of the 1st defendant took place after the institution of the suit but before the present plaintiff applied for amendment of the written statement. Ultimately, the plaintiff's claim for a share was decreed. Held, that the alienation, in favour of the 1st defendant was affected by the rule of lis pendens. Once the requirements of Section 52 of the Transfer of Property Act are satisfied, it is immaterial what was the nature of the dispute between the parties to the suit. — Parameshwar Shivambhat v Saraswati, 1966(1) Mys. L.J. 680.


S. 52 — Suit for maintenance praying for charge — Sale pending — If affected — Admission — Value and weight — Approbate and reprobate — Principle of — Pleadings — No specific issue — Effect. The original owner of the properties died leaving a widow, three sons K, M and B and three minor daughters, Sh, Sr and D. On 1-9-1918, the three brothers executed a usufructuary mortgage in favour of AH over properties including those in the present suit. The widow and two of the minor daughters filed in 1919 suits in forma pauperis against the brothers for maintenance and marriage expenses and for a charge on the properties. The suits were decreed and in execution of the decree of D, the present properties were sold and purchased by D on 2-8-1928. K was adjudicated insolvent on 19-2-1926. L.Rs of AH filed a suit on the mortgage in O.S. No. 8 of 1933 and in execution of the mortgage decree the properties were sold and purchased by C in 1937, who sold them to KR the present plaintiff. The three brothers entered into a partition on 6-9-1938 and K sold the present suit properties which fell to his share on 30-1-1920 to N and ultimately they vested in the defendants. Plaintiff filed a prior suit O.S. No. 92 of 1938 alleging that the decree and sale in O.S. 100 were collusive and obtained a decree. But on appeal the matter was compromised, which recognised the title of plaintiff. Plaintiff sued for declaration of his title and removal of obstruction on the basis of title of C by purchase in execution of the decree on the mortgage of 1-9-1918. The defendants were not made parties to the mortgage suit O.S. No. 8 and hence claimed their right of redemption. It was held by the High Court that by reason of Section 52 of the Transfer of Property Act, the title of N (and of the defendants) under sale dated 30-1-1920 came to an end. When D purchased the properties in execution. It was contended that the sale of 30-1-1920 was not hit by Us pendens by reason of the maintenance suit O.S. 100, on the grounds to the question of lis pendens was not raised in the plaint, that the suit O.S. 100, the decree and sale were all collusive and the execution sale in O.S. 100 was void as the official receiver of K's estate was not impleaded in that suit.
(1) Though the plaint did not aver lis pendens and there was no issue, it was raised by plaintiff at the very commencement of the trial, evidence was let in without objection by defendants and the question was argued on merits by defendants and therefore the absence of a specific pleading did not bar the question of lis pendens being argued. As both parties went to trial on the question of lis pendens and as the defendants had not been taken by surprise, the plea was open to the plaintiff.
(2) That the predecessor of defendants AH had been stating in the several proceedings that the sale dated 2-8-1928 was fraudulent, did not amount to allegation of collusion. In a collusive suit, the combat is a mere sham while in a fraudulent suit it is real. The statements of AH and his L.Rs in the prior proceedings as admissions which could be shown to be erroneous or untrue. The judgment in O.S. No. 92 of 1938 not being inter parties was not admissib; in his litigation, and there having been an appeal, the findings lost their finality and when the parties settled the matter, they ceased to possess any force even inter parties.
The plea that the decree and sale in O.S. 100 were collusive was not barred by the principle of approbate and reprobate. The maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the some transaction and to the persons who are parties thereto. Plaintiff obtained no advantage against the appellants by pleading collusion in O.S- No. of 1938 nor did he acquire rights thereby and there was also no question of election, because the relief claimed then and now are the same, though on different and even inconsistent grounds.
(3) As K had sold the property on 30-1-1920, it did not vest in the official receiver when he was adjudicated on 19-2-1926 and non-impieading of the official receiver did not affect the sale of 2-9-1928 in execution of O.S. No. 100 of 1919. The sale of 30-1-1920 though pendents lite was operative between the parties and a transferor pendente lite cannot be treated for purposes of Section 52 of the Transfer of Property Act as still retaining title to the properties. Even assuming that the equity of redemption vested in the official receiver on the adjudication of K, his non-joinder in the execution in O.S. 100 did not render the purchase by D a nullity and under that sale she acquired a good title subject to any right which the official receiver might elect to exercise and it was not open to attack by the purchaser pendente lite under the deed dated 30-1-1920 and his representatives.
(4) Hence, the sale deed dated 30-1-1920 under which the appellants claimed was subject to the result of the sale deed dated 2-8-1928 in execution of the decree in O.S. No. 100 of 1919 by reason of the rule of lis pendens and it became avoided by the purchase by D on 2-8-1928. The appellants as purchasers of the equity of redemption from K did not have the right to redeem the mortgage of 1-9-1918. — Nagubai Amal and Others v B. Shama Rao and Others, ILR1956 Mys. 152 (SC).


During suit, sale by defendant, pursuant to earlier agreement — Plaintiff getting sale deed executed — Suit for possession limitation, Pending a suit for specific performance, defendant sold the property on 30-12-1948 (to the present 2nd defendant) in pursuance of an earlier agreement to sell. Plaintiff's suit was decreed and he got a sale deed executed through Court on 29-12-1955. The present suit was filed on 14-12-1961 for possession,
(1) That the sale by defendant on 30-12-1948 was affected by lis pendens under Section 52 of the Transfer of Property Act, notwithstanding that the alleged agreement for sale in favour of the transferee from the defendant was of a date earlier than that of the agreement in favour of the plaintiff. 1964(1) Mys. L.J. 236, rel.on.
(2) The principle of lis pendens being a principle of public policy, no question of good faith or bona fides arises. Hence, the transferee from one of the parties to the suit cannot assert, or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. Hence, the possession of transferee from the defendant was not adverse to plaintiff.
(3) The plaintiff's right to ask for possession arose on the execution through Court of the sale deed on 20-12-1955 and the suit for possession filed within six years from that date was not barred by limitation. — Mohammed AH Abdul Chanimomin v Bisahenii Kom Abdulla Saheb Momin, 1973(1) Mys. L.J. 130 : AIR 1973 Mys. 131.


A purchaser at an auction sale held in terms of a consent mortgage decree, is not entitled to recover actual physical possession of the premises in the occupation of lessees, the lease in respect of which were created after consent mortgagee decree was passed on an application under Order 21, Rules 95 and 96 of the CPC. The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. Section 52 of the Transfer of Property Act also did not help the auction purchaser. He was an outside purchaser was not the mortgagee, nor was he a party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the right of the parties to the suit or proceeding. AIR 1973 SC 569 Rule of lis pendens may not strictly apply to previous Court auction sales. — Syndicate Bank v Pundalika Nayak, ILR 1986 Kar. 3776.

Doctrine of lis pendens appiies to auction sale held by executing Court of judgment-debtor's property which was subject-matter pending suit or decree pending execution — Doctrine to be applicable, decree pending execution at time of auction sale must be valid decree — Where decree was invalid at time of auction sale, but was validated subsequent to auction sale, it would not affect title of auction purchaser who was bona fide purchaser for value without notice of decree — Thus in case where property is subject-matter of suit for specific performance of contract to sell which was decreed, but mortgage decree instead of decree of specific performance was wrongly drawn up and during pendency of that wrong decree, same property was brought to auction sale by Bank as decree-holder, auction purchaser is not affected by mortgage decree which was then not executable — Subsequent amendment ...and rectification of such decree would not bind auction purchaser as he was not made party to amendment.
Held: Doctrine of lis pendens does apply to auction sales by the Executing Court of any immoveable property of judgment-debtor which way-subject of dispute in a pending suit. . . . .The doctrine of lis pendens does not operate and would be inapplicable in the case of purchase by an innocent purchaser of the immovable property which is the subject of an existing illegal or inexecutable decree and that its amendment or rectification made subsequent to his purchase does not ensure to the benefit of the decree-holder as against him, to which amendment proceeding he was not a party. .... .In the case on hand the plaintiffs had remained callous and indifferent in seeking rectification of the said void decree dated 31-5-1977 and the material on record demonstrates that they and the judgment-debtor as well appear to have deliberately allowed the auction purchaser to purchase the property during existence of that illegal decree of which he had no knowledge, whatsoever, plaintiffs had not acquired under the said decree any right to purchase the property in question. The decree in its present form was inexecutable and the Trial Court had no power to deal with the property under the same. The auction purchaser was not bound by the subsequently rectified/amended decree since he was not a party to that amendment proceeding. Therefore, the considerations of equity require protection of interest of the intervening auction purchaser of the property when pitted against the plaintiffs' claim to the right to purchase the same under the said void decree. In the facts and circumstances of the case, the doctrine of Us pendens cannot be held operative against the purchase of the said property by the auction purchaser. — B.V. Vasantha v Sha Poonawchand (deceased) by LRs. and Others, 1997(3) Kar. L.J. 691A : ILR 1997 Kar. 1561.


Transfer pendente lite — Applicability of doctrine of lis pendens to — Lis pendens which starts from presentation of suit, continues till decree is executed, and doctrine is attracted to all transfers made during period — Private sale made by judgment -debtor who is aware of decree and of attachment made before judgment, and who has no evidence to prove that transfer is for consideration, has to be held fraudulent and voidable at instance of auction purchaser, even though sale was made after dismissal of execution petition for non-prosecution but before its restoration. The judgment-debtor is aware of the decree and the attachment before judgment and also attachment in execution. Therefore, the transfer is intended to defeat or delay the creditors. The private sale embarked upon by the respondent is hit by Us pendens and no title can pass on to the vendor, the respondent herein. . . .The Court auction sale must be respected as against the private sale indulged by the judgment-debtor when the matters are pending and fought tooth and nail by the decree-holder. — Kanthilal v Smt. Padma Maiya and Others, 1999(3) Kar. L.J. 193D : ILR 1999 Kar. 2114.

Transferee during the pendency of a suit for partition of parts of an estate assessed to payment of land revenue to Government which is the matter of the suit, have locus standi to appear before the revenue authorities in proceedings under Section 54 of the CPC, and ask for an equitable partition of the lands, even though they had not been impleaded as parties to the suit in the Civil Court. The position of a transferee during the pendency of a suit or proceeding is similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or proceeding, or an official receiver who takes over the assets of such party on his insolvency. — Khemchand Shankar v Vishnu Hari, 1983(1) Kar. L.J. Sh.N.78(SC).