Har Narain (D) By Lrs vs Mam Chand (D) By Lrs. & Ors

passed by the High Court of Punjab & Haryana High

Court at Chandigarh in R.S.A. No.1545 of 1979

dismissing the Regular Second Appeal, as well as the

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Review Application, filed by the appellant concurring with

the judgments and orders of the trial Court as well as of

the First Appellate Court on all issues raised in the case.

2. Facts and circumstances giving rise to these

appeals are that the defendant/respondent No.1-Mam

Chand (since deceased through LRs.) (hereinafter called

the `respondent') was the owner of land admeasuring 22

kanals situate within the Revenue estate of Village

Asraka Majra, District Riwari, Haryana. The said

respondent had mortgaged the entire land in favour of

the predecessor-in-interest of the appellant, namely, Har

Narain (since deceased and now represented through his

LRs.) for Rs.7,000/-. The appellant was also put in

possession of the said land. The respondent No.1entered

into an Agreement for Sale of 8 kanals of the said

property with the appellant for Rs.7500/- and he received

Rs.200/- as earnest money in cash while a sum of

Rs.7000/- to be adjusted as mortgage amount. However,

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the said respondent No.1 executed the sale deed on

2.8.1971 in favour of respondent nos.2 to 6.

3. Being aggrieved, the appellant filed Suit No.172 of

1971, for specific performance against the respondent

no.1 for executing the sale deed of the land in question

on 10.8.1971 and the trial Court restrained him from

alienating the suit property by any means. Respondent

no.1 moved an application dated 16.8.1971 for

vacating/modifying the interim order dated 10.8.1971

wherein he disclosed that the entire land in dispute had

already been alienated in favour of respondent nos.2 to 6.

However, the sale deed executed in favour of the said

respondents was registered on 3.9.1971. The suit was

contested by the respondents on various grounds,

however, the trial Court dismissed the suit vide judgment

and decree dated 4.9.1973 on various grounds, inter alia,

that sale deed deemed to have come into force on

2.8.1971, as the registration thereof dated 3.9.1971

would relate back to the date of execution which had

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been prior to institution of the suit and thus, the doctrine

of lis pendens would not apply. The said respondents 2

to 6 were bona fide purchasers for consideration without

notice. Therefore, the sale deed in their favour was to be

protected.

4. Being aggrieved, the appellant filed First Appeal

No.508 of 1973, however, the same was dismissed by the

First Appellate Court vide judgment and decree dated

22.3.1979. The appellant further approached the High

Court by filing the Regular Second Appeal No.1545 of

1979 which was dismissed by the High Court vide

judgment and order dated 9.10.2001. However, as none

had appeared on behalf of the appellant on the said date

before the High Court, the appellant filed the application

to recall the said judgment and order dated 9.10.2001

under Order 41 Rule 19 read with Section 151 of the

Code of Civil Procedure, 1908 (hereinafter called `CPC').

The said application was allowed vide order dated

9.9.2002 and the matter was heard afresh on merit on

4

the same day. The Court agreed with the proposition laid

down by the courts below that principles of lis pendens

would not apply in the facts and circumstances of this

case as the sale deed has been executed before the filing

of the suit though, the same was got registered

subsequent to the institution of the suit. Hence, these

appeals.

5. Shri Dhruv Mehta, learned Senior counsel

appearing for the appellant has submitted that the courts

below reached the conclusion that doctrine of lis pendens

was not applicable in the facts of the case merely on the

ground that the sale deed has been executed by the

respondent No.1 in favour of respondent nos.2 to 6 prior

to institution of the suit and the registration of the sale

deed would relate back to the date of execution by virtue

of the application of the provisions of Section 47 of the

Registration Act, 1908 (herein after called the `Act 1908')

without taking note of the fact that the execution of a

sale deed of immovable property of more than Rs.100/-

5 in value is not capable to transfer the title unless the

deed is registered as required under Section 52 of the

Transfer of Property Act, 1882 (hereinafter called the `Act,

1882) and Section 17 of the `Act 1908. In case, the

appellant had been in the possession of the suit land

being the mortgagee of the entire property since long, the

question of protection under Section 19(b) of the Specific

Relief Act, 1963 (hereinafter called the `Act 1963') to the

respondent nos.2 to 6 that they were bonafide

purchasers for value and paid money in good faith

without notice of the earlier contract, becomes

meaningless for the reason that they had a notice that

the land was in possession of the appellant and this fact

had also been mentioned by the respondent No.1 in the

sale deed dated 2.8.1971 in their favour. Thus, the

appeals deserve to be allowed.

6. On the contrary, Shri R.K. Kapoor, learned counsel

appearing for the respondents has vehemently opposed

the appeals contending that there are concurrent

6

findings of fact by three courts and this Court being the

fourth court should not re-appreciate the factual matrix

of the case and interfere in the appeals. The sale deed

might have been registered at a later stage but the

document becomes effective from the date of its

execution. The findings so recorded by the courts below

do not require any interference. The appeals lack merit

and are liable to be dismissed.

7. We have considered the rival submissions made by

learned counsel for the parties and perused the records.

Admitted facts remain that the entire land

admeasuring 22 kanals had been mortgaged by Mam

Chand, respondent No.1 in favour of appellant vide deed

dated 30.6.1970 and the appellant had been put in

possession thereof. The possession of the land is with

the appellant since 1970. An agreement to sell was

entered into between the appellant and respondent No.1

on 25.5.1971. Sale deed was executed by the respondent

No.1 in favour of respondent nos.2 to 6 on 2.8.1971 and

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the said sale deed was got registered on 3.9.1971. The

suit had been filed on 10.8.1971 i.e. subsequent to the

date of execution of the sale deed and before the

registration thereof on 3.9.1971. The trial court also

passed an ex-parte order dated 10.8.1971 restraining

the respondent No.1 from alienating the suit land,

however it was subsequently modified vide order dated

31.8.1971.

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

8

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

9

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:

10 "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

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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

13

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.

14. So far as the issue of notice of first sale to

respondent Nos. 2 to 6 is concerned, it has to be

examined bearing in mind that the sale deed in favour of

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the respondent Nos. 2 to 6 clearly disclosed that the Suit

land had been mortgaged to the appellant and it was in

his possession since 1970. In R.K. Mohammed

Ubaidullah & Ors. v. Hajee C. Abdul Wahab (Dead) by

LRs. & Ors., AIR 2001 SC 1658, this Court considered a

similar case wherein the question had arisen as to

whether the vendees of subsequent sale were bona fide

purchasers of the suit property in good faith for value

without notice of original contract and whether they

were not required to make any inquiry as to the equitable

or further interest of the other party at the time of

execution of sale in their favour. In view of the fact that

they had been aware that the land was in possession of

first purchaser, the Court took note of the definition of

"notice" as provided in Section 3 of the Act, 1882, and

particularly Explanation II thereof for deciding the case.

The said Explanation reads:

"Any person acquiring any immovable property

or any share or interest in any such property

shall be deemed to have notice of title, if any, of

any person who is for the time being in actual

possession thereof."

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This Court came to the conclusion that in view of Section

19(b) of the Act, 1963 and definition of "notice"

contained under Section 3 of the Act, 1882, it could not

be held that the subsequent purchasers were bona fide

purchasers in good faith for value without notice of the

original contract and they were required to make inquiry

as to the nature of the possession or title or further

interest, if any, of the other party over the suit property

at the time when they entered into sale transaction,

notwithstanding, that they were already aware that the

other party was in possession of the suit property as the

tenant. Thus, what is material is the inquiry at the time

when subsequent sale transaction was entered into.

15. The instant case is squarely covered by the

aforesaid judgment, so far as this issue is concerned.

The subsequent purchaser has to be aware before he

purchases the suit property. Thus, we are of the

considered opinion that respondent Nos. 2 to 6 could not

be held to be bona fide purchasers for value paid in good

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faith without notice of the original contract and the sale

in their favour was subject to the doctrine of lis pendens.

Legal maxim, pendente lite, nihil innovetur; provides that

as to the rights of the parties to the litigation, "the

conveyance is treated as if it never had any existence; and

it does not vary them."

16. It has half-heartedly been argued by Shri Kapoor,

learned counsel for the respondents that respondent

Nos. 2 to 6 are the first purchasers as there was an

agreement to sell executed in their favour on 19.2.1971

and he had taken us through the judgments of the trial

court as well as the First Appellate Court where passing

remarks have been made by the courts in respect of the

same on the basis of the written statement filed by the

respondent No.1, though this point has not been agitated

by the respondent Nos. 2 to 6, nor any issue had been

framed in this respect either by the trial court or as an

additional issue by the First Appellate Court. In view of

the fact that the respondent No.1 has been executing

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documents in respect of the same land in favour of

different persons as is evident from the record, the

contention raised by Shri Kapoor is not worth

consideration.

17. In view of the above, we reach the inescapable

conclusion that the sale executed by respondent No.1 in

favour of respondent Nos. 2 to 6 on 2.8.1971 could not

be termed as a complete sale until the document got

registered on 3.9.1971. In view of the provisions of

Section 47 of the Act, 1908 the effect of registration

would be that registration would relate back to the date

of execution but it does not mean that sale would be

complete in favour of respondent Nos. 2 to 6 prior to

3.9.1971 i.e. the date of registration of the sale deed. In

view of the above, as sale stood completed during the

pendency of the suit, doctrine of lis pendens is applicable

in the facts and circumstances of the case. The courts

below failed to appreciate that the fiction created by

Section 47 of the Act 1908, itself is a consequence of

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registration of the sale deed. More so, as the appellant

had been in possession of the suit land being a

mortgagee since 1970 and this fact had also been

mentioned by the respondent No.1 in the sale deed dated

2.8.1971 in favour of respondent Nos. 2 to 6, the

question of respondent Nos. 2 to 6 being bonafide

purchasers for value and paid money in good faith

without notice does not arise, simply for the reason that

the said respondents were fully aware that the suit land

was in possession of the appellant. Thus, the

respondents No.2 to 6 cannot take the benefit of the

provisions of Section 19(b) of the Act, 1963.

18. In view of the above, the appeals succeed and are

allowed. The judgment and decree of the courts below are

set aside. The respondents are directed to execute the

sale deed in favour of the appellant to the extent of land,

for which the agreement to sell was executed within a

period of three months from today. However, in order to

meet the ends of justice it is necessary to hold that

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respondent Nos. 2 to 6 shall be entitled to receive the

amount paid by them to the respondent No.1 as

consideration along with 10% interest per annum on the

same. The respondent No.1 shall be entitled to redeem

the land over and above the extent of land in respect of

which the agreement to sell had been executed, if any, in

accordance with law. There shall be no order as to costs.

..................................J.

(P. SATHASIVAM)

.................................J.

New Delhi, (Dr. B.S. CHAUHAN)

October 8, 2010

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