The Bench comprising Justice P. Sathasivam and Justice B.S. Chauhan, in Har Narain (D) By LRs v. Mam Chand (D) By LRs,
has explained the concept of Lis Pendens, embodied in Section 52 of the
Transfer of Property Act, 1882, which provides that during the pendency
of a lis, in which any right to immovable property in is question, the
property cannot be transferred by any party to the suit so as to affect
the rights of other parties. Lis pendens literary means a pending suit;
and the doctrine of lis pendens has been defined as the jurisdiction,
power or control which a Court acquires over property involved in a suit
pending the continuance of the action and until final judgment
thereunder.
Lis
pendens is based on the doctrine of expediency but for this it would be
impossible for an action to be brought to a successful termination if
crafty defendants alienate the suit property before judgment and the
plaintiff is driven to commence de novo proceedings, public policy
requires sanctity qua judicial proceedings to be maintained. It is
immaterial whether the alienee pendente lite had or had no notice of the
pending proceedings (Rappal v. Gopal AIR 1970 Kerala 180).
In the decision reported as 1972 (2) SCC 200 Jaya Ram Mudaliar vs. Ayya Swami and Ors.
the scope of lis pendens was explained as under:- “Expositions of the
doctrine indicate that the need for it arises from the very nature of
the jurisdiction of Courts and their control over the subject matter of
litigation so that parties litigating before it may not remove any part
of the subject matter outside the power of the Court to deal with it and
thus make the proceedings infructuous.”
In decision reported as AIR 1973 SC 2537 : Rajender Singh and Ors. vs. Santa Singh and Ors., referring to the doctrine of lis pendens it was observed as under:-
“15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated. (Emphasis supplied)”
The
question that arose for the Court's consideration, in the present case,
was the 'effective date' from which the Doctrine of Lis Pendens was to
apply; whether it was the date of execution of the sale deed or was it
the date of registration of the document? The Supreme Court while
reversing the Judgment of the Trial court held that;
"The
basic questions arise as to whether in the fact- situation of this
case, the sale deed executed by the respondent No.1 in favour of
respondent nos.2 to 6 could be subject to the doctrine of lis pendens
and in case the appellant had been in possession of the suit land being
mortgagee since 1970, the respondent nos.2 to 6 can be held to be
vendees without notice of an agreement to sell in favour of the
appellant by the respondent no.1.
8.
All the courts below have proceeded on the presumption that as the
registration of a document relates back to the date of execution and in
the instant case though the registration was subsequent to institution
of the suit, it would relate back to the execution of the deed and the
doctrine of lis pendens would not apply. Further, without considering
the fact that the appellant had been in possession of the suit land
since 1970, though, this fact had been mentioned in the sale deed in
favour of respondent nos.2 to 6 by the respondent No.1 whether it could
be held that they were not put to notice of the fact that the appellant
had some interest in the property and whether in such fact- situation
the respondent nos.2 to 6 may be entitled for benefit of the provisions
of Section 19 of the Act, 1963.
9.
Section 54 of the Act, 1882, mandatorily requires that the sale of any
immovable property of the value of hundred rupees and upward can be made
only by a registered instrument. Section 47 of the Act, 1908, provides
that registration of the document shall relate back to the date of the
execution of the document. Thus, the aforesaid two provisions make it
crystal clear that sale deed in question requires registration. Even if
registration had been done subsequent to the filing of Suit, it related
back to the date of execution of the sale deed, which was prior to
institution of the Suit. A similar issue though in a case of right of
pre-emption was considered by the Constitution Bench of this Court in Ram Saran Lall & Ors. v. Mst. Domini Kuer & Ors.,
AIR 1961 SC 1747, by the majority of 3:2, the Court came to the
conclusion that as the mere execution of the sale deed could not make
the same effective and registration thereof was necessary, it was of no
consequence unless the registration was made. Thus, in spite of the fact
that the Act, 1908, could relate back to the date of execution in view
of provisions of Section 47 of the Act, 1908, the sale could not be
given effect to prior to registration. However, as the sale was not
complete until the registration of instrument of sale is complete, it
was not completed prior to the date of its registration. The court held:
"Section 47 of the Registration Act does not, however, say when sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore, nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore, we do not think that the sale in this case can be said, in view of Section 47 to have been completed on January 31, 1946." (Emphasis added).
10. This view has subsequently been followed and approved by this Court as is evident from the judgments in Hiralal
Agrawal Etc. v. Rampadarath Singh & Ors. Etc., AIR 1969 SC 244;
S.K. Mohammad Rafiq (Dead) by LRs. V. Khalilul Rehmad & Anr. Etc.,
AIR 1972 SC 2162; Thakur Kishan Singh (Dead) v. Arvind Kumar, 11 AIR
1995 SC 73; and Chandrika Singh (Dead) by LRs. V. Arvind Kumar Singh
(Dead) by LRs. & Ors., AIR 2006 SCC 2199.
11.
However, all these cases are related to right to pre- emption though
the legal issue involved therein remained the same. In view of the
above, we are of the considered opinion that in spite of the fact that
the registration of the sale deed would relate back to the date of
execution, the sale can not be termed as complete until its registration
and it becomes effective only once it stands registered. Thus, the
fiction created by Section 47 of the Act, 1908, does not come into play
before the actual registration of the document takes place.
12. In Guruswamy Nadar v. P. Lakshmi Ammal (Dead) Through LRs. & Ors.,
(2008) 5 SCC 796, this Court dealt with a similar issue and considered
the effect of doctrine of lis pendens and the provisions of Section
19(b) of the Act, 1963. Facts of the said case had been that an
agreement to sell stood executed between the first purchaser and owner
of the land on 4th July, 1974 for a sum of Rs.30,000/- and a sum of
Rs.5,000/- was given as advance. The remaining amount was to be paid
before 31st July, 1974. As the said amount was not paid, the owner again
sold the suit property to another party (appellant) on 5th May, 1975
for a sum of Rs.45,000/- and possession of the suit property was handed
over to the appellant therein. Thus, the first purchaser filed the suit
for enforcement of the specific performance of the contract. The trial
court dismissed the Suit holding that the agreement was genuine and
appellant was a bona fide purchaser for value paid in good faith,
without notice of the earlier agreement, therefore, no decree for
specific performance could be passed in favour of the plaintiff therein.
The First Appellate Court reversed the said judgment and decree. The
Second Appeal was dismissed by the High Court. This Court considered the
provisions of Section 52 of the Act, 1882, and Section 19 (b) of the
Act, 1963, and held that as the subsequent sale was subsequent to the
filing of the Suit, Section 19(b) of the Act 1963 read with Section 52
of the Act, 1882, could not grant any benefit to the subsequent
purchaser and the subsequent sale was subject to the doctrine of lis
pendens. Second sale could not have the overriding effect on the first
sale. The Court held as under: "So far as the present case is concerned,
it is apparent that the appellant who is a subsequent purchaser of the
same property, has purchased in good faith but the principle of lis
pendens will certainly be applicable to the present case notwithstanding
the fact that under Section 19(b) of the Specific Relief Act his right
could be protected."
13.
In view of the above, it is evident that doctrine of lis pendens would
apply in the present case as the registration of the sale deed was
subsequent to filing of the Suit and subsequent purchasers i.e.
respondent Nos. 2 to 6 cannot claim benefit of the provisions of Section
19(b) of the Act, 1963.
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