Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J.

1. This is a suit for the partition of certain propertieswhich are mentioned in the schedule to the plaint--properties which belonged toone Jagdis Chunder Sarkar, who died in the month of Joist 1293, leaving himsurviving his minor sons, the plaintiff and the defendants Nos. 1, 2, 3, 4 and5, and his widow, the defendant No. 6 and the defendant No. 7, who was his ownmother. No question arises in relation to any share of the latter in theproperty. The suit was instituted on the 27th of August 1895, and summonseswere served upon the defendants on the 14th September in the same year. In theinterval, on the 12th September, the defendant No. 1 had, for valuableconsideration, transferred his share in one of the properties treating (subjectto what I will say in a moment) that share as a one-sixth share, to thedefendant No. 8, who was subsequently on the 5th December 1895 made a party tothe suit.

2. The real question in dispute is whether the defendant No.8 is entitled to a one-sixth share, or only to a one-seventh share in theproperty sold to him, the contention on the part of the mother (defendant No.6) being that, on partition, she is entitled to a share, equally with her sixsons, which would render the estate divisible into seven shares, and not six.The case came on for trial, and the learned Subordinate Judge of the24-Pergunnahs delivered his judgment on the 21st of September 1896, a judgmentwhich was adverse to the contention of defendant No. 8. The case was thencarried on appeal to this Court, and on the hearing of that appeal, this Courtheld that there must be a remand to have the following further issues tried,namely: (1) whether the defendants Nos. 1 and 8, or either of them, knew thefact of the institution of the suit before the execution of the firstconveyance in favour of defendant No. 8 by defendant No. 1; and (2) whether,exclusive of the property covered by the earlier of the two conveyancesexecuted by defendant No. 1, in favour of defendant No. 8, there still remainedproperty appertaining to the share of defendant No. 1 sufficient to contributeto the share of No. 6, and whether a partition can be effected, and, if so,into the way, so as to exclude the property covered by the said conveyance bytreating it as allotted to the share of No. 1. These issues were referred fortrial to the Court below, with directions to take any additional evidence whichthe parties might desire, and the Court below was to return its finding onthese issues.

3. It is unnecessary to say anything about the finding onthe second issue because it appears that the defendant No. 1 has parted withall his interest in the other properties to other purchasers, who are notparties to the suit, and so no practical effect can be given to the suggestionof contribution implied by that issue.

4. On the first issue, the Subordinate Judge has found thatboth defendant No. 1 and defendant No. 8 had notice of the present suit on the12th of September.

5. I may point out, incidentally, that both defendant No. 1and defendant No. 8 would appear to have entertained some doubt as to whetherthe formers share were really a sixth, for there is a covenant in the kabalathat, if the vendors statements to found to be untrue (one of which was thathe was entitled to a one-sixth share) that is to say, that if it be afterwardsfound that his interest was less than the extent of interest which was theredeclared, he should in that case refund the consideration-money, in proportionto the extent by which the same might fall short.

6. It is urged for the appellant that, before a partitionwas actually effected, the defendant No. 1 had an absolute right to deal withhis share, and to transfer that share to a purchaser for value free from anyclaim of his mother to a share on partition; and that the right of the motherto a share on partition is not an absolute or vested right, but a contingentright only, contingent on the partition being actually made. He further urgesthat the case is not within Section 52 of the Transfer of Property Act.

7. To this the mother (the respondent) replies, that,inasmuch as under the Hindu law of the Bengal School, which admittedly governsthe present case, the mother would, if there were a partition, be clearlyentitled to a share equal to that of her sons, the defendant No. 1 could notdeal with his share so as to prejudicially affect his mothers right; that hecould not transfer to a purchaser a larger interest than he himself had; andthat, inasmuch as the transfer was effected after the institution of the suit,Section 52 of the Transfer of Property Act applied.

8. It is, I think, clear upon the authorities--I need onlyrefer to the case of Hemangni Dasi v. Kedarnath Kundu Chowdhry, I.L.R (.1889)Cal., 758; 16 I.A., 115, and the case of Sorolah Dossee v. Bhoobun Mohun NeoghyI.L.R. (1888) Cal 15., 292--that in the event of the sons partitioning theproperty, their mother is entitled to a share equal to their own respectiveshares, and that she takes this share in lieu of, or by way of provision for,her maintenance, for which the partitioned estate is already bound.

9. The appellant does not dispute, nor could he successfullydispute, this proposition of law, but he contends that there is no such rightin the mother, unless and until a partition has actually taken place, and greatreliance is placed upon certain passages in the judgment of Mr. Justice DwarkaNath Mitter in the case of Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R.61, and, without doubt, those passages do give support to the appellantscontention.

10. That learned Judge says: "The learned Counsel forDoolaro has contended that, in the case before us, partition must be held tohave actually taken place, and he cited a ruling of Her Majesty in Council tothe effect that division by metes and bounds is not at all necessary toconstitute partition under the Mitakshara." And later on he says: "Ithas been said that the question of maintenance is quite distinct from thequestion before us, but there can be no doubt that the share that is given to aHindu mother at the time of partition is given to her for no other purpose thanas a provision for her maintenance. She has no right to ask for maintenanceafter she has got such a share, and if a partition has been effected in thiscase, Golabas suit for maintenance must have been dismissed on that groundalone. It is unnecessary, therefore, to decide whether Golaba had a right toalienate the share assigned to her by the principal Sudder Amin as herstridhan, under the Mitakshara law. Our finding is, that she had acquired noright to that share, as she died before partition had been actually made."The last sentence indicates that the question there was one of succession, andthat as the mother had died before any actual partition had been made, she hadacquired no right to any share; and the Judges remarks must be taken inconnection with the case he was then dealing with, which is one substantiallydiffering from the present, where a partition has actually been effected, whichwould undoubtedly give the mother a right to a share according to Mr. JusticeMitters view, and when the question here is whether that right can be defeatedby a transfer from one of the sons.

11. It is said for the appellant that Mr. Justice Mittersview is endorsed by Mr. Justice Wilson in the case of Sorolah Dossee v. BhoobunMohun Neoghy I.L.R (1888) Cal., 292. There Mr. Justice Wilson cites the passagewhich I have just read, and he says: "The Court seems to me here to laydown, and to lay down not by way of dictum or mere expression of opinion, butas the ground of decision, that when a mother takes a share on partition, hertitle arises from the partition alone, and that she had no pre-existing vestedright except a right of maintenance."

12. In that case again the question was one of succession;the respondent, however, does not put her case so high as that of apre-existing vested right to a share, but she says she has an inchoate orquasi-contingent right which may ripen or crystallise into an absolute right,if and when, the partition takes place, which happened in the present case.

13. With respect to the case of Lakshman Ram Chandra Joshiv. Sattya Bhama Bai : I.L.R(1877) ., Bom., 494, cited for theappellant, the true nature of that suit is stated by Mr. Justice Wilson in thecase of Sorolah Dossee v. Bhoobun Mohun Neoghy I.L.R (1888) . Cal.,292 ). It isnot a case which bears directly upon the present, and though it is relied uponby the appellant there are passages in the judgment of Mr. Justice West whichsupport the respondents view. For instance, that learned Judge says at p. 508of the report: "The mothers ownership, which has according to this viewbeen extinguished, revives again on a partition amongst her sons; theirownership in the meantime is complete." But if there existed in the motherany such ownership, must not a purchaser from a son of his share--I am notspeaking of a sale for the payment of the fathers debts--purchase subject tothat right Mr. Justice Wilson does not share Mr. Justice Wests view: hethinks that on partition an old right does not revive, but that a new rightarises. However, the case of Lakshman Ram Chandra Joshi v. Sattya Bhama Bai: I.L.R (1877) 2 Bom., 494, is in its circumstances sodifferent from the present that it cannot be regarded as an authority for theproposition for which the present appellant contends. If, as the authoritiesappear to establish (see per West, J., at p. 506 of the report of that case),the widows maintenance, specially as against the sons, is a charge on theestate, a right in rem in the fullest sense adhering to the property intowhatever hands it may pass, a right convertible, in the event of a partition,into a right to a share equal to that of sons, it is difficult to see upon whatprinciple a son can so deal with his share as to defeat that right of hismother.

14. In my opinion defendant No. 8 cannot, as between themother and himself, stand in a better position than his transferor defendantNo. 1, and that, as on a partition defendant No. 1 would only be entitled to aseventh share, defendant No. 8 is not entitled to any more; in other words, hemust be taken to have purchased, subject to the right of the mother, if therewere a partition, to have a share allotted to her in lieu of her maintenance.There appears to me to be some analogy between this case and the principle ofthe case of Byjnath Lall v. Ramoodeen Chowdhry ILR(1874) I.A 1 21 W.R., 233, inthe Privy Council, where it was held that, "where the owner of an undividedshare in a joint and undivided estate, mortgages his undivided share, he cannotby so doing affect the interests of the other sharers, and the persons who takethe security, that is, the mortgagees, take it subject to the right of thosesharers to enforce a partition, and thereby convert what is an undivided shareof the whole into a defined portion held in severalty."

15. But whether the view expressed above be or be not sound,it seems to me that the case is within Section 52 of the Transfer of PropertyAct. The transfer undoubtedly took place after the institution of the suit, andboth parties to the transfer had notice of the suit. It is, however, urged forthe appellant, that this is not a "contentious suit or proceeding in whichany right to Immovable property is directly and specifically in question"within the meaning of the section.

16. It is said upon the authority of the case of RadhasyamMohapattra v. Situ Panda I.L.R (1888) Cal., 647, that a suit does not become"contentious" until the summons has been served upon the oppositeparty, but no reason is assigned by the learned Judges for their conclusion. Iam inclined to think this view proceeds upon some confusion between what iscontentious, and the exact point of time when a Us pendens is constituted. Ishould infer that the conclusion was arrived at by analogy to the Englishcases, which decide that, as between plaintiff and defendant, the service ofthe subpoena constitutes the Us pendens between them [see Bellamy v. Sabine(1857) De Gex and J., 566 (586). We are, however, relieved from going into thequestion as to the precise point of time when a lis pendens is Constituted inthis country whether, as between plaintiff and defendants or as betweenco-defendants, for the section says: During the active" prosecution * * *of a contentious suit, etc., etc.," which indicates with reasonableclearness that, whilst the suit is being actively prosecuted, the property isnot to be transferred or dealt with so as to affect the rights of any other partythereto, under any decree or order which may be made therein. It is notsuggested that this suit was not being actively prosecuted when the transferwas executed. In this view I fail to see how the case cited is any authority asto what is or what is not a "contentious" suit. A contentious suit isa suit involving contention, and it is perhaps difficult to predicate of anysuit, at the moment of its inception, whether or not it is likely to becontentious; but if, in point of fact, it turns out to be a suit which wascontested, as is the case here, then, to my mind, the suit is a contentious oneand the section applies. It seems to me that in order to appreciate whether thesection applies, we must regard the event, and in this case the event showed acontested suit.

17. We are referred, however, to the case of Khan Ali v.Pestonji Edulji Guzdar : 1 C.W.N., 62, as an authority forthe proposition that this section does not apply to a partition suit upon theground that it is not a suit or proceeding, "in which any right toImmovable property is directly or specifically in question." I scarcelythink the Court intended to lay down any such wide proposition. The ChiefJustice says: I do not think that section applies to a suit for partition inwhich the shares of the parties and the rights of the parties to the shares arenot disputed." Here, however, the shares of the parties are disputed, sothe present case is distinguishable.

18. I have already alluded to the case of Bellamy v. Sabinewhich has been relied upon by both sides, and which has been adopted andfollowed in this Court in the case of Raj Kishen Mookerjee v. Radha MadhubHaldar (1874) 21 W.R., 349. It is not pertinent to the case before us save asenunciating, according to the views held by the Courts in England, thefoundation of the doctrine as to the effect of lis pendens .

19. For these reasons the appeal fails, and must bedismissed with costs.

Banerjee, J.

20. I agree with the learned Chief Justice in thinking thatthe judgment of the Court below is right. The suit out of which this appealarises was brought by one of six brothers against the other five brothers,their mother and their grandmother, for partition of the property, moveable andimmovable, inherited by the brothers from their father, after determining thequestion whether the mother and the grandmother are entitled to a share, or tomaintenance only; and the prayer of the plaintiff was for division of theproperty by metes and bounds into eight, seven, or six shares, according as inthe judgment of the Court the mother and the grandmother both, or only one ofthem, or neither of them, had a right to a share.

21. The defence of the defendant No. 1 was to the effectthat the mother was not entitled to any share as she had property ofconsiderable value given to her by his father; that, in regard to property No.1, the defendant had sold his one-sixth share to Jogendra Chunder Ghose, andthat in regard to that property there could not be any partition except undercertain rules which had been previously agreed to between the parties. Upon thewritten statement of the defendant No. 1 being filed Jogendra Chunder Ghose wasadded as a defendant in the case, being the defendant No. 8, and his defencewas that he was rightfully entitled to the property purchased by him, that isthe one-sixth share of the defendant No. 1 in property No. 1, and that thedefendant No. 6, the mother, could not claim any share thereof. I need notconsider the other objections taken by the defendant No. 8 in his writtenstatement.

22. The Court below overruled the objections of thedefendants Nos. 1 and 8 and made a decree for partition, directing that thegrandmother, the defendant No. 7, should obtain maintenance at a certain rate;that the defendant No. 6, the mother, should have a share in the property; thatthe property should be divided into seven equal shares, and that the share ofthe defendant in property No. 1 should be assigned to the defendant No. 8.

23. Against this decree, the defendant No. 8 preferred anappeal. At the first hearing of that appeal, it appearing to this Courtessential to the right decision of the case that certain issues, which had notbeen considered in the Court below, should be framed and tried, namely (1) whetherthe defendants Nos. 1 and 8, or either of them, knew the fact of theinstitution of the suit before the execution of the first conveyance in favourof defendant No. 8 by defendant No. 1; and (2), whether exclusive of theproperty, covered by the earlier of the two conveyances executed by thedefendant No. 1 in favour of defendant No. 8, there still remained propertyappertaining to the share of defendant No. 1 sufficient to contribute to theshare of defendant No. 6, and whether a partition can be effected, and, if so,in what way, so as to exclude the property covered by the said conveyance bytreating it as allotted to the share of defendant No. 1, the case was remandedfor a finding on those issues.

24. The Court below has found that both the defendant, No.1, and the defendant No. 8, were aware of the fact of the institution of thesuit before the execution of the conveyance in question, and that there is notenough property belonging to the share of defendant No. 1, excluding theproperty covered by the first conveyance in favour of defendant No. 8, tocontribute to the share of defendant No. 6. It is now contended on behalf ofthe appellant that the Court below is wrong in holding that the defendant No. 6is entitled to any share in the property covered by the conveyance executed infavour of the appellant by the defendant No. 1, that is, in a one-sixth of an 8annas share which was owned by the father of defendant No. 1, and the groundsupon which this contention is based are two, the first ground being, that asthe right of the defendant 6, the mother of the plaintiff, and of thedefendants Nos. 1 to 5 to claim a share arises only upon partition being madeof their joint paternal property by her sons, and as previous to such partitionthe defendant No. 1 had transferred his share in property No. 1 to defendantNo. 8, he must be taken to have acquired that share free from the claim of thedefendant No. 6, and the second being, that the additional reason upon whichthe Court below has based its decision in favour of defendant No. 6, namely,that the defendant No. 8 is bound by the doctrine of lis pendens, is anerroneous reason, the doctrine of lis pendens not being applicable to thiscase.

25. I shall deal with these two contentions separately.

26. In support of the first contention, it is argued that asthe right of the mother to claim a share in her husbands estate arises onlyupon partition by her sons, and as no such partition had been made until afterthe alienation in favour of defendant No. 8, the purchase by the defendant No.8 of a one-sixth share from defendant No. 1 cannot be held to have been subjectto the right of defendant No. 6, which had not come into existence at the dateof the alienation. It is further urged that the mothers right to a share inher husbands estate is not in the nature of an absolute right to the estate,but is only in lieu of, or by way of provision for, the maintenance for whichthe estate is liable, and as a purchaser from one of the sons has been held notto be bound by any claim of the widow for maintenance, no more can he be boundby her claim for a share on partition which is only in lieu of, and as aprovision for, such maintenance. And in support of this argument, the cases ofSheo Dyal Tewaree v. Judoonath Tewaree (1868) 9 W.R., 61; Hemangini Dasi v.Kedarnath Kundu Chowdhry I.L.R (1889) 16 Cal 758: IL.R 16 IndAp, 115; SorolahDossee v. Bhoobun Mohun Neoghy I.L.R (1888) 15 Cal., 292 [LQ/CalHC/1888/11] ; Lakshman Ram ChandraJoshi v. Satya Bhama Bai I.L.R (1877) 2 Bom., 494; Adhiranee Narain Coomary v.Shonamalee Pat Mahadai I.L.R., (1873) 1 Cal., 365 [LQ/CalHC/1952/109] , and Barahi Debi v. DebkaminiDebi I.L.R (1892) 20 Cal., 682 [LQ/CalHC/1892/95] , have been relied upon.

27. The right of the mother to a share on partition isfounded upon the following passage in the Dayabhaga: "When partition ismade by brothers of the whole blood after the demise of the father an equalshare must be given to the mother. For the text expresses the mother should bemade an equal sharer." Ch. II, Sec. III, para. 29.

28. With reference to the above passage in the Dayabhaga ithas been held, and it must now be taken as settled law, that the mothers rightto claim a share arises only when her sons come to a partition, in other words,that she cannot enforce her claim to a share so long as her sons remain jointand do not ask for partition. But there is nothing said in this passage, or inany other authoritative text of Hindu law, as to the mothers right to a shareon partition being so absolutely non-existent before partition, that it may bedefeated by any of her sons alienating his share before coming to a partition.

29. In my opinion, the correct view to take of this rightwould be to hold that it is an inchoate right as long as no partition is cometo amongst the sons, and it becomes actually enforceable only when the sonscome to a partition; or in other words, that the right, when it becomesenforceable by reason of a partition being come to among the sons, isenforceable, not only as against the sons, and as regards so much only of thejoint property as at the date of partition is in the hands of the sons, butalso as against any person deriving title from any of the sons, and as regardsthe property to which they may have so derived title, subject to certainqualifications and limitations which it is unnecessary to discuss in detail inthis case, having regard to the facts found by the Court below, the correctnessof which has not been practically impugned. It must be taken to be a correctproposition of law that no owner of property can convey to any person a higherright than what he himself possesses except under certain specialcircumstances. The purchaser, therefore, of joint family property from a memberof a joint Hindu family must take it subject to the rights of his vendorsco-sharers to demand partition and subject also to such rights of other personswho were not strictly speaking co-sharers with the vendor at the date of thealienation, as may arise under the Hindu law upon partition.

30. The correctness of this general proposition, which issupported by the case of Bilaso v. Dinanath I.L.R (1880) 3 All., 88, cannot, Ithink, be disputed. The case of Sheo Dyal Tewaree v. Judoonath Tewaree (1868) 9W.R., 61, relied upon by the learned Vakil for the appellant, does not reallyconflict with the view I take. The point actually decided with reference to themothers share in that case was that such share could not be claimed by adevisee from the mother when she died after the decree of the first Court in apartition suit, but before the hearing of the appeal from that decree, and thatwas a point very different from the one that arises in this case. Nor is thecase of Barahi Debi v. Debkamini Debi I.L.R (1892) 20 Cal., 682 [LQ/CalHC/1892/95] , in point, asit was held with reference to the facts of that case that there was nopartition of "the bulk of the family estate," and that what wassought to be divided was not "anything more than a small outlying piece ofproperty" of which one of the sons had sold his share to the plaintiff.

31. The second branch of the first contention is that as themothers right to a share has been held in two of the cases cited, namely,Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) I.L.R., 15 Cal, 292 [LQ/CalHC/1888/11] , andHemangini Dasi v. Kedarnath Kundu Chowdhry I.L.R. (1889) 16 Cal., 758: IL.R.,16 IndAp, 115, to be a right that arises in lieu of or by way of a provisionfor her maintenance, such a right must be subject to the same limitation as theright to maintenance is, and as the right to maintenance is, according to the casesof Adhiranee, Narain Coomary v. Shonamalee Pat Mahudai I.L.R (1873) 1 Cal.,365, and Lakshman Ram Chandra Joshi v. Satya Bhama Bai I.L.R (1877) 2 Bom.,494, not enforceable against a purchaser from any of the sons, the right to ashare on partition must in the same way be held not to be enforceable againstsuch a purchaser. I am of opinion that this argument is not sound. For thereasons for the decision in Lakshman Ram Chandra Joshis case and in that ofAdhiranee Narain Coomary against the widows claim in regard to maintenance areinapplicable to her claim to a share on partition. I should, in the firstplace, observe that though in the two cases of Sorolah Dossee v. Bhoobun MohunNeoghy I.L.R(1888) 16 Cal., 292, and Hemangini Dasi v. Kedarnath Kundu ChowdhryI.L.R(1889) 16 Cal, 758: IL.R., 16 I A., 115, the mothers claim to a share hasbeen held to be a claim in lieu of or as a provision for her maintenance, inneither of those two cases did the point arise for decision which we have nowto consider, and it was only incidentally that the observations, upon which thelearned Vakil for the appellant relied, were made.

32. Now the main reason upon which the decision in the caseof Lakshman Ram Chandra Joshi v. Satya Bhama Bai, so far as it touches thepresent question, turned is incorporated in the following passage in thejudgment of Mr. Justice West: "If then a mother foregoing her claim to aseparate provision out of the personal property resides with her sons orstep-sons and is maintained by them she must submit, I think, to their dealingwith the estate."

33. Although that observation may hold good as regards herclaim for maintenance in respect of which she may obtain a decree fixing itsamount and declaring it to be a charge on any definite property, and althoughher not doing so may be treated as an omission on her part, the consequence ofwhich is to disentitle her to enforce her claim against a purchaser in goodfaith from any of her sons, could the same thing be said in regard to her claimto a share upon partition She cannot enforce such a claim so long as her sonsdo not come to a partition; she cannot ask for any decree declaring her rightto a share in any particular property until a partition is come to by her sons;and therefore, though consequences adverse to her claim for maintenance mayarise from her omission to do what she might have done to place her claim on asecure basis, that is a consideration which is wholly inapplicable to her rightto a share upon partition.

34. Another reason given [see Adhiranee Narain Coomary v.Shonamalee Pat Mahadai I.L.R (1873) 1 Cal., 365 [LQ/CalHC/1952/109] for holding that a widowsclaim for maintenance as a charge is not enforceable against a purchaser fromany of the sons is, that it would be inconvenient to allow her to enforce sucha charge by reason of the uncertainty of the claim and by reason of many othersimilar claims resting upon a similar ground. These also are reasons whichwould be inapplicable to the mothers claim to a share upon partition. Such a claimis definite in its nature, her share being defined as being equal to that ofone of her sony, and the claim to a share being capable of enforcement only bythe mother and not by any other member of the family. The reasons, therefore,applicable to the case of a claim for maintenance are inapplicable to themothers claim to a share upon a partition.

35. The case of Barahi Debi v. Debkamini Debi I.L.R (1892)20 Cal., 682 [LQ/CalHC/1892/95] , as I have already remarked, does not call for any detaileddiscussion as the facts of that case were different, and as the learned Judgesin their judgment observed: "Of course every case must be determined byits own facts, and there may well be cases in which the main body of the familyproperty is divided, leaving only a small portion joint, and in such a case nodoubt the sons would have partitioned the property among themselves, and theright of the widow to have a share set apart for her maintenance would comeinto existence." On these grounds, I am of opinion that the first contentionurged on behalf of the appellant is untenable.

36. That being so, it is not necessary to discuss the secondpoint at any great length. I would only observe that no valid reason has beenshown for our holding that the case does not come within the scope of Section52 of the Transfer of Property Act. It was urged that there was no contentioussuit, at any rate not until the service of summons on the defendant No. 1, andas the transfer in favour of the appellant was made before the service ofsummons on the defendant No. 1, the alienation in his favour cannot be affectedby Section 52. But, as has been pointed out in the judgment of the learnedChief Justice, a suit does not become contentious merely by service of summonson the defendant. Whether or not a suit is contentious must depend on whetheror not it is really so. The expression "contentious suit" is, Ithink, used in contradistinction to a friendly suit in which there is nocontest, and the parties bring the suit only to obtain the decree of a Court ofJustice, declaring their rights as to which they are themselves in perfectagreement. Was that the nature of this suit Clearly not. The plaint itselfraised the question as to whether or not the mother, the defendant No. 6, wasentitled to a share; it invited the Court to determine that question; anddefendant No. 1 denied the mothers right to a share. Clearly, therefore, therewas here a contentious suit in which the right to Immovable property, that isproperty No. 1 in the schedule to the plaint, was directly and specifically inquestion.

37. Great reliance was placed on the case of RadhasyamMohapattra v. Sibu Panda I.L.R (1888) 15 Cal., 647 [LQ/CalHC/1888/43] , as showing that there couldnot be a contentious suit or proceeding until the service of summons on thedefendant. No doubt there is a passage in the judgment of the learned Judgeswho decided that case which lends some support to this contention; but havingregard to the facts of that case, I am of opinion that it is clearlydistinguishable from the present. The facts are thus stated in the judgment:"As a matter of fact the defendant No. 2 did not appear to defend thesuit. She put in a written statement in which she alleged that she had partedwith all her interest in the property to the plaintiff in this suit by virtueof the conveyance to him of the 5th of October 1883, and she asked that hemight be made a party to that suit. He was not, as a matter of fact, made aparty to that suit, and, as I have said, judgment was given against defendantNo. 2, who did not appear to defend the suit. This is the lis pendens which thedefendant No. 1 seeks to take advantage of." Clearly, therefore, there wasno contentious suit there; and I may add that the same remarks apply to thecase of Khan Ali v. Pestonji Edulji Guzdar : 1 C.W.N., 62.There also, so far as one can gather from the judgment, it proceeds upon theground that there was no contentious suit during the pendency of which thealienation in question was made. The second contention of the appellant,therefore, also fails.

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Fulkumari Dassi and Ors.vs. Jogendra Chunder Ghose(25.05.1899 - CALHC)