JUDGMENT - DUDHAT M.L., J.:—The appellant in this case is the original plaintiff who filed this appeal against the order dated 30th July, 1989 passed by the Civil Judge, Senior Division. Dhule, in Special Civil Suit No. 160 of 1977. 2. The appellant filed Special Civil Suit No. 160 of 1977 for partition and separate possession of her share and also for a declaration that the gift deed dated 10-8-1965, Exh. 45, executed by her husband in favour of defendant No. 2 Rohidas is not binding on her. In the said suit it was contended on behalf of the appellant that she was married to Zipa her husband in the year 1943. The said Zipa died on 2nd March, 1976 leaving behind Panabai, respondent No. 1 and Annapurnabai, the present appellant. as his widows. It was contended on behalf of the appellant that earlier on 28th July, 1965 she filed Regular Civil Suit No. 291 of 1965 for maintenance against her husband Zipa. In the said suit notice dated 12-7-1965 was issued and charge against the suit property was created pending the suit and the suit was ultimately decreed on 13th September, 1966. It was further contended on behalf of the appellant-plaintiff that the alleged gift deed executed by Zipa, her husband, which is at Exh. 45 dated 10-8-1965 is not binding upon her as the same is a fraudulent transfer under section 53 of the Transfer of Property Act (hereinafter referred to as 'the T. P. Act' for the sake of brevity). Further it was contended on behalf of the appellant-plaintiff that the said gift was also bad in law as the said gift was executed pending the suit filed by her against Zipa in which right to immovable suit property was directly and specifically in issue. Therefore, it was contended on her behalf that the said gift was also hit by principle of lis pendens under section 52 of the T. P. Act. 3. The respondents-defendants also filed the written statement which is at Exh. 16, wherein the respondents denied the contentions as alleged by the present appellant. The respondents further contended that the marriage between Zipa and the appellant is void, as the same was in contravention of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946. 3. The respondents-defendants also filed the written statement which is at Exh. 16, wherein the respondents denied the contentions as alleged by the present appellant. The respondents further contended that the marriage between Zipa and the appellant is void, as the same was in contravention of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946. It was also contended that the deceased Zipa executed gift deed during his life time of Gat No. 212 of village Borsule and Gat No. 375 of Chinchwar and house bearing Gram Panchayat No. 331 in favour of respondent No. 2 by registered gift deed dated 10th August, 1965 and, therefore, the defendants prayed that the suit filed by the present appellant be dismissed. 4. The trial Court, after hearing both the sides and after scanning the evidence, came to the conclusion that the appellant was lawfully wedded wife of deceased Zipa and that the deceased Zipa executed a valid gift deed dated 10th August, 1965 in respect of certain properties which the appellant is not entitled to claim. However, the trial Court granted half share in the properties not covered by the gift deed which is at Exh. 45 and granted other half share to respondent No. 1, the co-widow of the deceased Zipa. 5. Against the said judgment and decree dated 30th July 1979 the present appellant has preferred this appeal being First Appeal No. 794 of 1980 in forma pauperis. Respondent No. 2 also filed cross-objections. 6. Shri Karlekar, learned Counsel for the appellant, strongly contended that the gift deed, which is at Exh. 45, dated 10-8-1965 is not binding on the appellant, as the same was executed during the pendency of the litigation which she filed against her husband Zipa and also on the ground that the said gift deed was executed fraudulently to deprive the appellant who was creditor and, therefore, the said gift is void in view of section 52 read with section 53 of the T.P. Act. 7. On the other hand, Shri Naik, learned Counsel for the respondents, contended that the gift was perfectly valid and does not come within the ambit of section 52 of the T. P. Act. He further contended that the said gift by Zipa in favour of respondent No. 2 was not effected fraudulently. 7. On the other hand, Shri Naik, learned Counsel for the respondents, contended that the gift was perfectly valid and does not come within the ambit of section 52 of the T. P. Act. He further contended that the said gift by Zipa in favour of respondent No. 2 was not effected fraudulently. Further he contended that the marriage of the appellant with Zipa was void in view of the provisions of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946, as at the time of the said marriage Panabai-respondent No. 1 was living and there was no divorce between respondent No. 1 and the said Zipa. 8. I will first turn to the arguments advanced by Shri Karlekar as regards lis pendens. Shri Karlekar contended that on 28th July 1965 the appellant filed Regular Civil Suit No. 291 of 1965 in the Court of the Civil Judge, Junior Division, Dhule, against her husband Zipa for maintenance and for recovery of arrears of maintenance. During the pendency of the aforesaid suit, the properties of Zipa i.e. the suit properties were attached. The said suit was decreed on 13th September 1966 and the trial Court awarded maintenance to the present appellant at the rate of Rs. 45/- per month and also awarded amount of Rs. 600/- for the past maintenance. Now, the gift deed Exh. 45, which is relied upon by respondent No. 2, was executed by Zipa, the husband of the present appellant on 10th August 1965. The trial Court in para 8 of its judgment came to the conclusion that the principles of lis pendens under section 52 of the T.P. Act are not applicable in respect of the present gift deed, which is at Exh. 45, as, according to the trial Court no suit summons was served on Zipa and further according to the trial Court in the said Suit No. 291 of 1965 filed by the present appellant only charge was kept against the suit properties and, therefore, the transferor was only bound by the charge. By giving the aforesaid reasoning, the trial Court rejected the argument advanced on behalf of the present appellant that the gift deed executed on 10-8-1965, Exh. 45, is hit by principles of lis pendens as per section 52 of the T. P. Act. 9. With respect, according to me, the trial Court is wrong in coming to the aforesaid conclusion. By giving the aforesaid reasoning, the trial Court rejected the argument advanced on behalf of the present appellant that the gift deed executed on 10-8-1965, Exh. 45, is hit by principles of lis pendens as per section 52 of the T. P. Act. 9. With respect, according to me, the trial Court is wrong in coming to the aforesaid conclusion. The trial Court has not taken into consideration section 52, more particularly Explanation of section 52 of the T. P. Act. Section 52 of the T. P. Act is as under:— “52. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is direct and specifically in question, 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. Explanation. - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” By bare reading of Explanation under section 52 of the T.P. Act, it is clear that the pendency of suit or proceeding commences from the- date of the presentation of the plaint or institution of the proceeding in a-Court of competent jurisdiction and issuance of notice and service of notice is of no consequence. 10. 10. From this it is clear that the suit was filed by the appellant on 28th July 1965 against Zipa for maintenance and in the said suit, the suit property of Zipa i.e. the suit property in the said suit was attached and, therefore, at the time when the deceased Zipa executed the gift deed dated 10-8-1965, Exh. 45, the suit was already filed by the appellant. 11. Secondly, now one has to see as to whether right to the suit property was directly and specifically in issue in Suit No. 291 of 1965. In the present case it is pertinent to note that the appellant filed suit being Reg. Civil Suit No. 291 of 1965 in the Court of Civil Judge, Junior Division, against her husband Zipa for maintenance and also for arrears of maintenance. After filing the suit, the appellant obtained charge from the Court on all the properties belonging to Zipa which are also the properties in the present suit. In view of this fact, in my opinion the properties mentioned in the present suit were also directly and specifically in issue in Suit No. 291 of 1965 which the appellant filed against Zipa as a creditor of Zipa. In view of this, the gift deed effected by Zipa on 10-8-1965 is hit by principles of lis pendens of section 52 of the T.P. Act. 12. The aforesaid conclusion of mine is also supported by the decision of this High Court in (Krishnaji Pandharinath Balwankar v. Anusayabai Sidram Gulbile)1, 1958(60) Bom.L.R. 1083. In the said case wife filed suit for maintenance claiming charge on husband's property. However, the said suit was dismissed under Order IX, Rule 2 of the Civil Procedure Code. Wife filed application for restoration of the suit and the same was granted by the Court. In the meantime it appears that the husband sold the property in between the time when the suit was dismissed and before it was restored. Decree was passed in wife's favour and creating charge on the property for payment of maintenance. Wife filed application for restoration of the suit and the same was granted by the Court. In the meantime it appears that the husband sold the property in between the time when the suit was dismissed and before it was restored. Decree was passed in wife's favour and creating charge on the property for payment of maintenance. In Darkhast in execution of the decree of the-property sold by the husband, the question posed before the Court was whether the sale was affected by rule of lis pendens, i.e. whether the plaintiff' suit was one where right to the suit property was directly and specifically in question and, therefore, the decree was liable to be executed against the house purchased by the purchaser having no notice. In the aforesaid case this High Court held that as the plaintiff has claimed a charge on the house and the Court had declared the charge, the plaintiff's suit was a suit in which right to immovable property was directly and specifically in issue within section 52 of the T. P. Act. Further the Court held that the application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit. The fact that the appellant had no notice of the plaintiff's suit does not prejudicially affect the right of the plaintiff to execute the decree against the house. The Court held that the application of the rule contained in section 52 of the T. P. Act has to be adjudged by reference to the claim made in the suit and the decree passed and not on any academic consideration as to what the true state of the law applicable to the dispute between the parties is and whether the decree was properly passed in the light of the true rule applicable. 13. In view of the aforesaid circumstances, the gift deed, which is at Exh. 45, dated 10-8-1965 effected by Zipa the deceased husband of the appellant in favour of respondent No.1 is hit by lis pendens and the said gift is subject to the decision given in Reg. Civil Suit No. 291 of 1965. 14. At this stage I may further mention that there is no evidence whatsoever in the present case as to what happened subsequent to obtaining the decree dated 13-9-1966 in Reg. Civil Suit No. 291 of 1965. Civil Suit No. 291 of 1965. 14. At this stage I may further mention that there is no evidence whatsoever in the present case as to what happened subsequent to obtaining the decree dated 13-9-1966 in Reg. Civil Suit No. 291 of 1965. However, according to me, this fact will not come in the way of the Court to decide this appeal in view of the contentions made by the present appellant that the said gift deed, Exh. 45, was effected by Zipa the deceased husband of the present appellant only to defeat the claim of the present appellant for maintenance and, therefore, the same is hit by section 53 of the T. P. Act. 15. Admittedly, the appellant filed Suit No. 291 of 1965 claiming maintenance wherein she obtained order of the Court charging the suit properties. When the said suit was pending Zipa the deceased husband of the appellant executed the gift deed dated 10-8-1965, Exh. 45. Clearly it appears that the said gift was effected by the deceased Zipa in favour of respondent No. 1 only to avoid the payment of maintenance to his wife i.e. the present appellant. 16. Section 53(1) of the T.P. Act is as under:— “53(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors.” After going through the aforesaid provision of section 53(1) of the T.P. Act, it is clear that if the transfer of immovable property is made with intent to defeat or delay the creditors of the transferor, it shall be voidable at the option of any creditor so defeated or delayed. Since this Court has come to the conclusion that the gift deed dated 10-8-1965 was executed by the deceased Zipa husband of the appellant pending Suit No. 291 of 1965, the said gift is subject to the result of the final Judgment and decree passed in Suit No. 291 of 1965 and further since this Court has come to a conclusion that the said gift was executed by the deceased Zipa in favour of respondent No. 1 in order to defraud the appellant who was claming maintenance, the said gift is voidable at the instance of the appellant and, therefore, the appellant was entitled to get the declaration which she sought for, that the gift deed dated 10-8-1965, Exh. 45, is void and is not binding on her. 17. In view of this conclusion, at the time when this decree was passed by the trial Court, the appellant -original plaintiff was entitled to get half share in the property of Zipa her husband and respondent No.1 the other wife of Zipa was entitled to get half property. However, due to further change in circumstances, according to me, the present appellant will be entitled to get the whole property of Zipa being the sole surviving heir of Zipa. 18. During the pendency of the first appeal, Civil Application No. 454 of 1988 was filed by the present appellant-original plaintiff, stating in it that Panabai-respondent No. 1 expired on 24th August, 1987 and, therefore, in view of her death, the appellant -original plaintiff being the sole surviving heir of the deceased Zipa, is entitled to get whole suit property. In the aforesaid civil application the Registrar granted rule. Independent of the aforesaid application filed by the present appellant, respondent No. 2 also preferred Civil Application No. 455 of 1988. In the said civil application respondent No. 2 contended that on 24th August, 1987 respondent No. 1 expired leaving behind a registered Will wherein she has given all her share in the suit property to respondent No. 2. Respondent No. 2, therefore, prayed in the said civil application that being a legatee under the Will, he may be brought on record as a heir of respondent No. 1. Thereafter both these civil applications were brought to the notice of the Court because of the conflicting claims made by both the parties. Respondent No. 2, therefore, prayed in the said civil application that being a legatee under the Will, he may be brought on record as a heir of respondent No. 1. Thereafter both these civil applications were brought to the notice of the Court because of the conflicting claims made by both the parties. This Court by its order dated 10th August, 1988 remitted the matter to the trial Court to decide as to whether the appellant or respondent No. 2 represents the property of the deceased respondent No.1. 19. On 1st August, 1989 the trial Court i.e. the Civil Judge, Senior Division, Dhule, decided the said point by coming to the conclusion that the Will dated 21st February, 1981 is not proved and, therefore, respondent No. 2 is not entitled to get the share of respondent No. 1 on the basis of the said Will. The trial Court further held that the present appellant is the legal representative of Panabai. 20. The aforesaid judgment and order passed by the Civil Judge, Senior Division, on 1st August 1989 was also challenged by respondent No. 2. Shri Naik, learned Counsel for respondent No. 2, contended that the Will executed by respondent No.1 dated 21st February, 1981 was executed by her before the Sub-Registrar and, therefore, the trial Court ought not to have discarded it lightly. He further contended that there are two attesting witnesses who attested the thumb impression of respondent No. 1 Panabai. 21. According to me, there is no substance in the submission made by Shri Naik on behalf of respondent No. 2. I have gone through the order. The trial Court came to the conclusion that the evidence given by the scribe who scribed the Will and two attesting witnesses is self-contradictory. Apart from that the evidence given is as such that on the basis of the said evidence it is difficult to come to the conclusion that the thumb impression on the said Will is that of respondent No. I. The trial Court also held that the depositions of attesting witnesses also create doubt about the execution of the Will. According to the trial Court the Sub-Registrar before whom the Will was registered was also not examined by respondent No. 2. By giving this reasoning, the trial Court discarded the claim of respondent No. 2. According to the trial Court the Sub-Registrar before whom the Will was registered was also not examined by respondent No. 2. By giving this reasoning, the trial Court discarded the claim of respondent No. 2. According to me, the order passed by the trial Court is well reasoned order and there is nothing on record on the basis of which it can be struck. 22. In view of the aforesaid report submitted by the trial Court and after going through it, I am of the opinion that after the death of Panabai-respondent No. 1 on 24th August, 1987 the appellant being the sole surviving heir of Zipa, is entitled to get the suit property. 23. In view of this legal position, the appeal is allowed with costs. I set aside the Judgment and decree passed by the Civil Judge, Senior Division, Dhule, dated 30th July, 1979 in Special Civil Suit No. 160 of 1977. The appellant is declared owner of the immovable property as shown in Schedule 'A' of the plaint and respondent No. 2 is directed to deliver possession of the suit property in his possession to the present appellant. Both in the trial Court as well as in this appeal the appellant appeared as indigent person. Court fee on the valuation of the subject matter in respect of the suit property mentioned in Schedule 'A' be recovered from respondent No. 2. Respondent No. 2 is further directed to pay Court fee within two months from passing of the order by the trial Court. Copy of the decree be sent to the Collector accordingly for recovering the said Court fee from respondent No. 2. 24. Certified copies to be supplied urgently. Appeal allowed. -----