Property lawLis pendensPrivy Council (on appeal from Oudh)

Faiyaz Husain Khan v Munshi Prag Narain

(1907) 34 IA 102; [1907] UKPC 1219071 min read
The case in brief30-second read
Facts
In 1889 Hamid Husain mortgaged Mauza Bangawan to Newal Kishore. Newal Kishore sued on the mortgage in 1891 and got a decree for sale. While that suit was pending, the property was mortgaged to another person, through whom Faiyaz Husain later claimed.
Issue
Was the mortgage made during the suit bound by its result under S.52?
Held
Yes. The mortgage was made while a contentious suit was pending and being actively prosecuted, so it could not affect the rights under the decree.
Principle
Under S.52 TPA, a suit is pending from its institution, not from service of summons; lis pendens rests not on notice but on the need for litigation to reach an effective end, so neither party can alienate the property in dispute to affect the other.

Facts

  • In 1889 Hamid Husain mortgaged Mauza Bangawan to Newal Kishore. Newal Kishore sued on the mortgage in 1891 and got a decree for sale.
  • While that suit was pending, the property was mortgaged to another person, through whom Faiyaz Husain later claimed.
  • The property was sold under Newal Kishore's decree to Prag Narain. Faiyaz Husain challenged the sale.

Issue

  1. Was the mortgage made during the suit bound by its result under S.52?

Held

  • Yes. The mortgage was made while a contentious suit was pending and being actively prosecuted, so it could not affect the rights under the decree.
  • A suit is contentious from its institution; it does not have to wait for service of summons.
  • Following Bellamy v Sabine (1857), lis pendens does not depend on notice. Pending a suit, neither party can alienate the property in dispute so as to affect his opponent.
  • The appeal was dismissed.

Cite this

Citation

Faiyaz Husain Khan v Munshi Prag Narain (1907) 34 IA 102; [1907] UKPC 12

Reported: https://indiankanoon.org/doc/1472979/. This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.