Jogesh Chandra Mondal vs Tarulata Ghose

Bachawat, J.—By a kobala dated the 13th March, 1954, the plaintiff respondent conveyed certain property to the defendant appellant. By a separate agreement of the same date the defendant appellant agreed, to re-convey the same property to the plaintiff respondent. The plaintiff instituted the suit to enforce this agreement of re-conveyance. During the pendency of the suit the right, title and interest of the plaintiff under the agreement of re-conveyance dated the 13th March, 1954, was attached and sold in execution of a money decree and purchased by the defendant. In view of this purchase the defendant contended that the interest of the plaintiff under the agreement had vested in the defendant and accordingly the plaintiff was not entitled to continue the suit any further. Both courts have held that the purchase by the defendant during the pendency of the suit is hit by the doctrine of lis pendens and that the defendant is not entitled to set up his purchase pendente lite against the plaintiff''s contractual right to have the property re-conveyed to him. In my opinion this finding is erroneous.

The doctrine of lis pendens is embodied in section 52 of the Transfer of Property Act In view of section 2(d) section 52 of the Transfer of Property Act does not apply to a sale in execution of a decree of a court of competent jurisdiction. It is, however, well settled that the principle of (sic) pendens applies to such alienation. This is the effect of the Privy Council cases in (1) 12 I.A 171, (2) 13 I.A. 97 and (3) 24 I.A. 170.

The principle upon which the section is founded is stated by Lord Macnaghten in faiyaz Husain Khan v. Munshi Prag Narain and others (4) (34 I A. 102 at 105) Referring to Bellamy v. Sabine (5) [(1857) 1 Deg. & J. 566 at p. 548], Lord Macnaghten observed: "The correct mode of stating the doctrine, as Cranworth L. C. observed in the same case, is that pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent.

Section 52 of the Transfer of Property Act provides that during the pendency of a suit relating to an immovable property such 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". The section does not absolutely prohibit a transfer. A transfer is prohibited only so far as it affects the rights of any other party to the suit. As between the transferor and the transferee the transferor is bound by the transfer. The section aims at protecting not the transferor but the other party to the litigation.

If any party to the suit voluntarily transfers his rights to the immovable property to a stranger to the suit, there can be no doubt that such transfer is good as between the transferor and the transferee.

In Shyam Lal and Another Vs. Sohan Lal and Others, Mr. Justice Sulaiman observed: "The transferor himself cannot complain that his rights are affected by the transfer. A grantor cannot derogate from his own grant. Section 52 is, in my opinion, not intended for the protection of transferors in a pending litigation. So far as they themselves are concerned, they are bound by their own transfers".

In the same case Mr. Justice Mukerji observed: "It will be noticed that the rule is enacted entirely for the benefit of the ''other party'' and not for the benefit of the party making the transfer. The reason seems to be clear. The party who makes the transfer is bound by it, while the question is whether the successful party in the litigation, who is not the party making the transfer, is also to be bound by the transfer. The rule is that the ''other party'' is not to be so bound.

I respecfully agree with the above observations.

I am satisfied that on principle there can be no distinction between a voluntary and an involuntary transfer on this point. It is to be observed that section 52 of the Transfer of Property Act itself does not apply to an involuntary sale The principle of the section however has been extended to an involuntary transfer. I see no reason why if the transferor in the case of voluntary transfer during the pendency of the suit is to be bound, the party whose interests are involuntarily sold is not to be so bound. The doctrine of lis pendens is founded upon the principle that neither party to the litigation can alienate the property in dispute so as to affect his opponent. The doctrine is not founded upon the principle that the party whose interests are sold either voluntarily or involuntarily is not to be bound by the sale.

I am also satisfied that the fact that the transfer or the involuntary sale has taken place in favour of the other party does not affect the question. In my opinion, as between the person whose interest has been sold and the person who has acquired such interest, the person whose interest in the property has been sold is bound by the sale. The fact that the sale is in favour of a party to the litigation is a fortuitous circumstance. Section 52 prohibits the transfer so as to affect the rights of the other party. The transfer or the involuntary sale in favour of the defendant does not affect his rights. The defendant is, therefore, entitled to rely upon his purchase in the court sale. The purchase by the defendant in the court sale is valid and is not affected by section 52of the Transfer of Property Act or by the doctrine of lis pendens. The interest of the plaintiff in the agreement of re-conveyance has, therefore., vested in the defendant. The plaintiff, therefore, cannot maintain the suit any further. The suit, therefore, ought to have been dismissed by the courts below. The courts below were in error in passing a decree in favour of the plaintiff.

I pass the following order: -

The judgment and decree of the lower appellate court as also the judgment and decree of the trial court are set aside and the plaintiff''s suit is dismissed.

The appeal is allowed. The respondent must pay to the appellant the costs of the courts below and of this Court.