LexNAGUBAI AMMAL & OTHERS versus B. SHAMA RAO & OTHERS.
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S.C.R. SUPREME COURT REPORTS NAGUBAI AMMAL & OTHERS v. B. SHAMA RAO & OTHERS. [S. R. DAS, C.J., VENKATARAMA AYYAR and JAFER IMAM JJ.] 451 Lis pendens, Scope of-If prevents passing of title as between the transferor and the transferee-Nonjoinder of Receiver in insolvency in the execution proceeding-Effect-Transferee pendente lite, if entitled to attack execution sale on that gronnd-Limitation and adverse pos- session against a purchaser in execution of a decree on a prior mort- ga.ge-Oommencement-' Ool lusive' Mid 'Jra.1td11lent' - Distinction- Admission-Evid entiary valuc-TVhen can shift the burden of proof -Ma.xim that 'a person ca.nnot a.pprobate and reprobate'-Ap- plicability-Transfer of Property Act (IV of 1882), s. 52-Indian Limitation Act (IX of 1908), Art. 142. The appellants as defendants in a suit for declaration of title to certain building sites sought to resist the respondents' claim, aris- ing by purchase from a purchaser in a sale in execution of a mort- gage decree passed on a mortgage deed of 1918, by a counter-claim based on a purchase of the same lands made in 1920 by their pre- decessor-in-interest from one of the mortgagors against whom was then pending a suit for maintenance and for declaration of a charge on the land in s"uit. That suit was decreed in 1921 and the lands were purchased by the decreeholder in execution of her decree in 1928. The mortgagor had been adjudged an insolvent in 1926 and the Official Receiver in whom his estrite vested was not made a party to the execution proceeding. Suit to enforce the mortgage deed of 1918 was brought in 1933 impleading the Official Receiver and the purchaser in execution of the maintenance and charge decree but not the appellants. In execution of the decree passed in this suit, the lands in suit were sold to a third party in 1936 and in 1938 the respondent's father purchased them. The respondent did not specifically raise the question of lis pendens in his pleading nor was an issue framed on the point but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross-examined the respondent and invited thq,court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to a~oid. the operation of s. 52 of the T~ansfer of Property Act. The District Judge held that the appellants title acquired by the pur- chase of 1920 was extinguished by the sale held in execution of the charge dec1·ee by the operation of .s. 52 of the Transfer of Property 1:;0 1956 April 26 1956 N agubai Ammal and others v. B;· Shama Rao and others 452 SUPREME COURT REPORTS [1956] Act and decreed the suit and his decision was affirmed by the High Court in appeal. Held, that the decisions of the courts below were correct and must be affirmed. That in the facts and circnmstances of the case the omission of the respondent to specifically raise the question of !is pendens in his pleading did not take the appellants by surprise and was a mere irregularity which resulted in no prejudice to tliem. · Rani Chandra Kunwar v. Chaudhri Narpat Singh ([1906] L.R. 34 I.A. 27), applied. Siddik Ma~d Shah v. Mt. Saran and Others (A.LR. 1930 P.d. 57), explained and held inapplicable. That s. 52 of the Transfer .of Prope~ty Act did not prevent the - vesting of title in a transferee in a sale pendente lite but only made it subject to the rights of other parties as decided in the suit and subsequent insolvency of the transferor could not, therefore, vest any title in the Official Receiver or make the title of the execution purchaser liable to attack on the ground that the Receiver was not made a party to the execution proceeding. That even assuming that title could not wholly pass by a transfer penden"te lite and some interest would still subsist in the transferor to vest in the Receiver, the lands in suit having been sold ·in execution of a charge decree, the sale would at the most be not binding on him and he could, if he so chose, move to set it aside; but the transferee pendente lite or his representative could not be allowed to make his non·joinder a ground for attacking the sale. Wood v. Surr ([1854) 19 Beav. 551), applied. Inamullah Khan v. Shambhu Dayal (A.LR. 1931 All. 159). Subbaiah v.
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