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Judgment
P.K. Tare, J.
This is defendant''s appeal against the decree dated 4-5-1957, passed by Shri S. L. Sharma, Additional District Judge, Sagar, in Civil Appeal No. 131-A of 1956, renumbered as 5 A of 1957, reversing the decree passed by Shri T.P. Rawat, Civil Judge, Rehli, in Civil Suit No. 34-A of 1955, dated 27-10-1956.
The third respondent, Bharosa was owner of certain fields bearing various Khasra numbers having an area of 29.29 acres, as also a house. By an agreement, dated 30-9-1953 (Ex. D-11), he agreed to sell the said property to the appellants for a consideration of Rs. 5,300. Out of the agreed consideration, he accepted Rs. 250 as earnest money. Thereafter he refused to execute a sale deed in favour of the appellants. Therefore, they filed Civil Suit No. 21-A of 1953 for specific performance of the contract of sale on 2-12-1953. In the said suit, they impleaded the vendor, Bharosa alone, but did not implead respondents Nos. 1 and 2, who claimed to have an earlier agreement of sale in respect of the same property, as per an alleged agreement, dated 20-9-1953 (Ex. P-4) for a consideration of Rs. 5,100, out of which an amount of Rs. 600 bad been paid as earnest money. The appellants obtained a decree for specific performance of the contract of sale against the vendor on 19-10-1954 (Ex. D-6) in Civil Suit No. 21-A of 1953. In execution of the said decree, respondents Nos. 1 and 2 opposed delivery of possession, but possession was delivered in spite of their protest. Respondents Nos. 1 and 2 filed the present suit for possession of the suit property, alleging that they held an earlier contract of sale, dated 20-9-1953 in their favour and that in pursuance of the agreement, possession had also been delivered to them. They had got a registered sale deed, dated 25-1-1954 (Ex, P-5) in their favour on payment of full consideration of Rs. 5,100. As they were not impleaded by the subsequent contracted in their suit for specific performance of the contract of sale, they were not bound by the decree obtained against the vendor alone; and, as such, the delivery of possession effected in execution of that decree was not binding on the plaintiff''s. Further, the plaintiffs alleged that the agreement of sale having been acted upon by effecting delivery of possession of them, they were not required to file a suit for specific performance, but could maintain a suit for possession as against the vendor and the subsequent contracted.
The trial Judge held that the plaintiffs bad failed to prove that the agreement in their favour was entered on 20-9-1953. On the other hand, the learned Judge held that the agreement was entered on 2-10-1953. As regards the amount of earnest money of Rs. 600 the learned Judge opined that it was paid sometime after 2-10-1953. Therefore, the plaintiffs were held to be not earlier contracted, but subsequent contracted; and, as such, not entitled to any specific performance as against the appellants and further not entitled to claim possession as well. In that view of the case, the trial Judge dismissed the plaintiff''s suit.
Upon an appeal filed by the plaintiffs, the learned appellate Judge held that the agreement was entered into by the plaintiffs on 20-9-1953; and as such they were prior contracted entitled to claim specific performance as against the vendor, as also against the subsequent contracted. The delivery of possession effected in favour of the defendants in execution of their decree in Civil Suit No. 21-A of 1953 was held not binding on the plaintiffs. The agreement sale in favour of the plaintiff''s having been performed by effecting delivery of possession, it was held that they were entitled to maintain a suit for possession and further that they were not required to file a suit for specific performance of the contract of sale. The sale deed executed in favour of plaintiffs on 25-1-1954 during the pendency of the defendants'' suit for specific performance in Civil Suit No. 21-A of 1953, was held not to attract the provisions of section 52 of the Transfer of Property Act. Therefore, it was held that the plaintiffs could claim possession on the basis of their completed title as evidenced by the sale deed.
This appeal came up for hearing before the late Chaturvedi J. The only question probably argued before Chaturvedi J. was relating to the doctrine of lis pendens as per section 52 of the Transfer of Property Act. The learned Judge held that the said section was not attracted and, therefore, the plaintiffs'' suit for mere possession based on the sale deed dated 25-1-1954, was tenable. The finding of the first appellate Judge that the plaintiff''s were prior contracted was also affirmed. No other question having been raised before Chaturvedi J., the appeal was dismissed and the decree of the first appellate Court was affirmed.
As Chaturvedi J. granted leave for filing Letters Patent Appeal on the question of applicability of section 52 of the Transfer of Property Act, the case was further heard by a Division Bench in Letters Patent Appeal No. 102 of 1958. The learned Judges constituting the Division Bench set aside the judgment of the learned single Bench on the ground that the question relating to applicability of section 52 of the Transfer of Property Act had been decided as an abstract proposition of law and, therefore, the other points, which were raised in the grounds of appeal were not considered by the single Bench. Therefore, the Division Bench set aside the judgment of the single Bench, holding that the sale deed, dated 25-1-1954, in favour of the plaintiffs would be hit by the doctrine of lis pendens. In that view of the case, the appeal was remanded by the Division Bench to a single Bench for decision of the other questions involved in the appeal.
The learned counsel for both the parties addressed lengthy arguments and cited numerous cases in support of their contentions. The learned counsel for the respondents Nos. 1 and 2 also tried to reopen the question of applicability of section 52 of the Transfer of Property Act. In my opinion, the said question is not open for argument in view of the decision of the Division Bench, which is binding on me sitting singly. For the purposes of a Letters Patent Appeal, I am of opinion that the Division Bench is an appellate Court and its decision would be binding on the single Bench. Under the circumstances, it is not possible for the single Bench to traverse beyond the findings and the directions given by the Division Bench. The net result of the decision of the Division Bench is that the doctrine of Us pendens has been held applicable to the plaintiff''s sate deed, dated 25-1-1954. The other questions have been left open by the Division Bench, which will be considered by me on their own merits. The only question open to me sitting singly relating to doctrine of Us pendens is only about the legal implications of the decision of the Division Bench and nothing more. Therefore, I propose to ignore all arguments that were addressed on the point of inapplicability of the doctrine of lis pendens to the plaintiff''s sale deed, dated 25-1-1954 In accordance with the decision of the Division Bench, I am bound to hold that the said sale deed is hit by the doctrine of lis pendens. Therefore, we are only concerned with the effect of the said doctrine on the rights of the parties. It is also open to the respondents to claim any relief independently of the said sale deed, if the same be available to them under the law.
The learned counsel for the appellants, on the other hand, suggested that the decision of the question relating to doctrine of lis pendens by the Division Bench would conclude the matter in favour of the appellants; and, as such, their appeal ought to be allowed. As I am unable to accept the suggestion of the learned counsel for respondents Nos. 1 and 2, I am equally unable to accept the suggestion of the learned counsel for the appellants that their appeal ought to be allowed on the finding that the sale deed, dated 25-1-1954 is hit by the doctrine of lis pendens. At this stage, I may only observe that the Division Bench has not decided the question whether the plaintiffs are earlier contracted and whether they can claim specific performance of the contract of sale on that basis and whether the plaintiffs would be required to sue for specific performance of the contract of sale, or whether their suit for mere possession would be tenable on the doctrine of part performance u/s 53-A of the Transfer of Property Act. These questions are open for any decision.
We have first to consider the legal implications of the decision of the Division Bench on the question relating to the doctrine of lis pendens. In my opinion, the effect of the decision of the learned Judges of the Division Bench would be as already stated by me earlier, that the plaintiffs'' sale deed, dated 25-1-1954, would be subject to the rights of the appellants as declared in the previous decree passed in Civil Suit No. 21-A of 1953. The respondents can certainly enforce their rights either for possession or for specific performance of the contract of sale, in case they establish that they are earlier contracted.
The learned Judge of the first appellate Court reversed the finding of the trial Judge on the point whether the plaintiffs were earlier contracted or subsequent contracted. The learned Judge held that the plaintiffs were prior contracted. That is a pure question of fact based upon the evidence on record and therefore, in my opinion, that question would not be open to a challenge at the second appellate stage in the absence of an illegality or misapprehension on the part of the first appellate Court. In my opinion, the said finding is concluded in the present appeal. Similarly, the other findings that the plaintiffs had not obtained the agreement, dated 20-9-1953 in their favour by undue influence, as also the fact that the agreement in favour of the plaintiffs was for consideration would not be open to a challenge in the present appeal. Therefore, the learned counsel for the appellants very fairly and properly did not press any other question in the present appeal, except the one relating to the present suit for possession not being tenable in view of the decision of the Division Bench in the Letters Patent Appeal. In my opinion, that is the only and the real question for consideration in the present appeal.
The learned counsel for the appellants, invited attention to the relevant allegations in the plaint, which are as follows: that the decree obtained by the defendants Nos. 1 and 2 in Civil Suit No. 21-A of 1953 and the possession delivered in execution of the same are illegal and not binding on the plaintiffs, that the sale deed, dated 25-1-1954 being based on the earlier contract of sale, dated 20-9-1953 passed valid title to the plaintiffs entitling them to possession.
It is true that the plaintiffs filed a suit for possession only. The basis of their suit was that they had acquired a valid title on the strength of the sale deed, dated 25-1-1954, and that possession had been delivered to them in pursuance of the said sale deed. It is true that one of the plaintiffs was in possession as a lessee before the contract of sale. But, they definitely alleged in the plaint that they were made full owners; and possession as owners was delivered to them in pursuance of the registered sale deed, dated 25-1-1954. As such, there is no foundation in the plaint for the applicability of section 53-A of the Transfer of Property Act. Although the plaintiffs raised that question in the first appellate Court, as per their memo, of appeal and the learned counsel for respondents Nos. 1 and 2 also argued the question in the present appeal, I am of opinion that the foundation not having been laid in the plaint, the said question cannot be decided as an abstract question of law. Any evidence relating to delivery of possession in pursuance of the agreement of sale would be inadmissible as being beyond the pleas raised. Therefore, I am unable to allow the learned counsel for respondents Nos. 1 and 2 to raise the question of the doctrine of part performance in the present appeal. They are precluded from urging the question of the doctrine of part performance, which cannot be the basis of their relief for possession. It is further equally true that their rights as prior contracted are not affected by the decree obtained by the appellants in Civil Suit No. 21-A of 1953, or by the delivery of possession obtained by the appellants in execution of the same. The plaintiffs'' rights as prior contracted remained unaffected and they would be able to enforce them, as they were not made parties to the suit filed by the appellants for specific performance of the contract of sale. Therefore, there can be no doubt that they are entitled to maintain a suit for possession of specific performance of the contract of sale. Further, there is no doubt that the agreement in favour of the plaintiffs being earlier, they are prior contracted and they would be able to enforce their prior contract of sale as against the subsequent contracted, who would only be protected u/s 27(b) of the Specific Belief Act, in case they establish that they were bona fide transferees without notice of the prior contract of sale.
The learned appellate Judge has found it as a fact that the present appellants had notice of the prior agreement of sale in favour of the plaintiffs. As such, they could not claim to retain the property as bona fide transferees without notice of the earlier contract. That would again, in my opinion, be a question of fact, not open to a challenge at the second appellate stage. Therefore, it is clear that the appellants would not be able to resist the claim of respondents Nos. 1 and 2 for specific performance of the contract of sale.
The only relevant question for consideration, therefore, is about the legal implication of the decision of the Division Bench holding that the respondents'' Bale deed dated 25-1-1954 is hit by the doctrine of lis pendens. It is, therefore, necessary to see as to what rights the appellants obtained by the decree in Civil Suit No. 21-A of 1953. Section 52 of the Transfer of Property Act is in the following terms:-
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 directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding BO as to affect the rights of any other party thereto under any decree or order which may be made there. in, 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.
Therefore, there can be no doubt that the respondents'' sale deed, dated 25-1-1954 would be subject to the rights of the appellants declared by the decree in Civil Suit No. 21-A of 1953. We have, therefore, to ascertain as to what right the appellants obtained by the said decree.
The appellants, as has been found are subsequent contracted with notice of the prior contract in favour of the respondents. As such, the right that they obtained by the decree in Civil Suit No. 21-A of 1953 was against the vendor alone. They did not obtain any rights as against the prior contracted. Therefore, even though the respondents'' sale deed, dated 25-1-1954 might be hit by the doctrine of lis pendens, at the most it would be subject to the rights of the appellants in the decree obtained by them in Civil Suit No. 21-A of 1953. As they did not obtain any rights as against the present respondents by the said decree, the effect is that the respondents are not at all affected by the said decree, unless the appellants file a suit against them and get their rights inter se adjudicated upon. The respondents filed the present suit; and as such, the rights between the parties inter se will be subject to the result of the present suit. It is, therefore, clear that the net result is that whatever rights are declared in the present suit will finally bind both the parties. The same result would have been reached, had the present appellants filed a suit as against the subsequent contracted. Therefore, I am of opinion that as the appellants have been found to be prior contracted, the result of the decree in Civil Suit No. 21-A of 1953 on the rights of the present respondents either to sue for possession or to claim specific performance of the contract of sale is nothing. The suit for possession is tenable as the decree in Civil Suit No. 21-A of 1953 does not affect the respondents'' right to specific performance of the contract of sale or the title that they derived on the strength of the sale deed, dated 25-1-1954. From this point of view, the decree passed by the first appellate Court cannot be said to be erroneous or illegal in any manner whatsoever.
The burden to prove that they were transferees for value who paid their money in good faith and without notice of the original contract within the meaning of section 27(b) of the Specific Relief Act lay on the appellants, which burden they clearly failed to discharge. The learned appellate Judge found it as a fact that the appellants had notice of the earlier contract. I have affirmed that finding. As such, the appellants decree in the previous suit can be binding on the respondents only if the former established a case u/s 27(b) of the Specific Relief Act as laid down by their Lordships of the Privy Council in AIR 1934 68 (Privy Council) and AIR 1946 97 (Privy Council) . Subsequently a single Bench of this Court presided over by R.K. Rao J. took the same view in Rajkishore and Others v. Vishwanath and Others 1953 NLJ 160, by following the earlier Privy Council Case of Mas Muni Dibish v. Prankisher Das 4 MIA 392. Thus the appellants cannot succeed against the respondents on account of their failure to establish their case u/s 27(b) of the Specific Relief Act with the result that even though the doctrine of lis pendens might have been held applicable to the respondents'' Bale deed, dated 25-1-1954, the net result is that the appellants having obtained no right against the respondents, the respondents'' suit on the basis of the sale deed as conferring a valid title is maintainable.
Even if it were to be assumed that the respondents cannot rely on title as per the sale deed, dated 25-1-1954, it is clear that they, in the alternative, would be able to claim specific performance of the contract of sale, which right of theirs would not be defeated by the fact that the appellants obtained a decree against their vendor alone and purported to dispossess the present respondents in execution of that decree. I am of opinion that the present suit of the respondents was maintainable and even if it were assumed to be not maintainable, I would be inclined to grant them permission to amend their plaint in the interest of justice, as indicated by Clarke J. in Seth Mangilal v. Zam Singh and Others 1941 NLJ 340 : AIR 1941 Nag. 289 : ILR 1942 Nag. 478.
In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , their Lordships of the Supreme Court laid down that although the fact that a fresh suit on the amended plaint would be barred by time on the date of amendment, that may be a factor to be taken into consideration by the Court. But, that would not affect the power of the Court to allow amendments, which may be barred by time. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , their Lordships of the Supreme Court laid down that all amendments ought to be allowed, which satisfy the two conditions:-
(a) of not working injustice to the other side and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties.
This would eminently be a case, where in view of the conclusions arrived at by me on the other points, it would be in the interest of justice not to allow the plaintiffs'' claim for specific performance to be defeated altogether, if it were to be assumed that their suit for possession is not tenable on any ground; but, as already indicated, I am of opinion that the present suit for possession was tenable, as the decree in Civil Suit No. 21-A of 1953 does not adversely affect the rights of the respondents acquired on the strength of the sale deed, dated 25-1-1954, nor their right to claim specific performance of the contract of sale as earlier contracted, which they can enforce against the vendor, as also against the subsequent contracted. The net result is that the decree passed by the first appellate Court is correct.
The learned counsel for the appellants, however, urged that the legal implication of the decision of the Division Bench regarding applicability of the doctrine of lis pendens would be that the sale deed, dated 25-1-1954 cannot be the basis of any action in a Court of Law inasmuch as it being hit by the doctrine of lis pendens would be altogether void. In view of the wording of section 52 of the Transfer of Property Act (which has been reproduced earlier), any transfer lis pendens would not be void or a nullity altogether; but would only be voidable and subject to the rights declared by the decree passed in the suit. Therefore, in each case it will have to be ascertained as to what rights are declared by the decree, which would be binding on the transferees pendente lite.
The learned counsel for the appellants invited attention to the principle laid down by their Lordships of the Privy Council in AIR 1937 260 (Privy Council) , that if a mortgagor transfers the mortgaged property pending the suit for foreclosure, and the transferees take an actual possession of the same, the mortgagee-decree-holder on the passing of the final decree can proceed to execute the decree against the transferee for recovery of possession of the property transferred to him and that for that purpose the transferee pendente lite would be a representative-in-interest of the mortgagor, and would be bound by the decree passed against the original mortgagor.
There can be no doubt that any transfer pendente lite would be subject to the rights declared by the decree and for that purpose the transferee would be a representative-in-interest of the judgment-debtor. But, this would hold good, so far as a simple transfer pendente lite is concerned. We have, therefore, exactly to ascertain the legal effect of the doctrine of lis pendens on the rights of a transferee pendente lite who takes a transfer in pursuance of an earlier contract of sale in his favour. And when the subsequent contractee has notice of the earlier contract and is unable to establish that he is a bona fide transferee in good faith for value without notice of the earlier contract, their Lordships of the Privy Council have laid down the general principle; and it may have to be applied to the facts of each case to ascertain as to what the legal effect or the implication of the doctrine would be upon a particular set of facts. There can be no doubt that if the appellants had filed a suit for enforcing their rights as subsequent contracted to establish a case u/s 27(b) of the Specific Relief Act, in that event alone the respondent would become representative-in-interest of the vendor Bam Bharose. But unless that question u/s 27(b) of the Specific Belief Act is tried between the appellants and the respondents, the latter cannot be said to be the representatives-in-interest of the vendor merely because they took a sale deed during the pendency of the appellants'' suit wherein the respondents were not parties.
In Azhar Huesain v. Mohammad Shibli and Others 1939 NLJ 270 : AIR 1939 Nag. 183 : I L R 1939 Nag. 548 a Division Bench of this Court consisting of Grille J. and Niyogi J. held that for the purpose of section 47 of the Civil Procedure Code, the term ''Representative'' would include representatives-in-interest, such as the transferee of the decree-holder''s, or the judgment-debtor''s''-interest, who so far as such interest is concerned, would not be bound by the decree. Any objection filed by such a transferee would be as a representative-in-interest of the judgment-debtor or the decree-holder and as such would be covered by section 47 of the Civil Procedure Code. Such a transferee cannot be considered to be a stranger or a third person within the meaning of Order XXI, rule 58, Civil Procedure Code. It is true that as laid down by the learned Judges of the Division Bench, any transferee from either the judgment-debtor or the decree-holder during the pendency of the lis would certainly be a representative-in-interest, who would be bound by the decree. But, this case also lays down the general proposition. The exact situation which arises in the present case was not present in that ease. The present one is a peenliar case where the question relating to doctrine of lis pendens has to be considered with reference to the rights of a prior as well as a subsequent contractee. Therefore, this case also is distinguishable. At this stage, I might observe that there can be no doubt about the dictum laid down by their Lordships of the Privy Council that a transferee pendente lite would be a representative-in-interest of the transferor and would be bound by the rights or the obligations of transferor declared by the decree. It is here that the difficulty arises as to what rights exactly are obtained under the decree.
A Division Bench of this Court consisting of Niyogi and Digby JJ. in Gendmal and Others v. Laxman and Others AIR 1945 Nag. 86 : ILR 1944 Nag. 852, held that a purchaser pendente lite would be bound by the doctrine of Us pendens as be would be a representative-in-interest of his vendor within the meaning of section 47, Code of Civil Procedure; but the learned Judges have expressed the opinion that the mortgagee who pursued his remedy on a mortgage previously executed would not be affected by the doctrine of lis pendens arising from a suit subsequently instituted but instituted prior to the sale, unless he be impleaded in the suit. Of course, as has been laid down by the learned Judges of the Division Bench in the present case, a distinction would have to be made between the rights inchoate and vested rights. The case of superior mortgage would be one of a vested right while the case of an earlier contract of sale would be a case of inchoate right. Therefore, in the present ease, the ultimate result will depend upon the trial of the question u/s 27(b) of the Speci6c Relief Act in order to ascertain as to what rights the appellants got in their decree for specific performance against the vendor alone.
It is true that in AIR 1948 181 (Nagpur) , Hidayatulla, J. (as he then was) held that it would not be necessary for a person claiming specific performance of a contract of sale to implead in his suit a person who claims adversely to the vendor. Similarly, it may not be necessary for him to implead an earlier contractee. But, if the earlier contractee is not impleaded, the rights obtained by the subsequent contractee would be the enforcement of his contract against the vendor alone. The issue would always have to be tried between the earlier contractee and the subsequent contractee u/s 27(b) of the Specific Relief Act. Unless that is tried, the subsequent contractee cannot claim to have obtained any rights against the earlier contractee, merely by obtaining a decree against the vendor alone. Therefore, although the respondent may not have been a necessary or proper party to the appellants'' suit for specific performance there can be no doubt that they would always be able to enforce their rights on the basis of the earlier contract against the subsequent contractee, and the subsequent contractee would only be able to resist their claim on the basis of section 27(b) of the Specific Relief Act.
The learned counsel for the appellants invited attention to the Full Bench case of AIR 1946 322 (Lahore) , wherein the learned Judges held that the doctrine of lis pendens would apply to a case where, before the institution of the suit for pre-emption, an agreement to sell the property bad been executed by the Vender in favour of another prospective pre-emptor with an equal right of pre-emption, and subsequent to the institution of the suit, in pursuance of the agreement, a sale deed bad been executed and registered in the latter''s favour, after the expiry of limitation for a suit to enforce his own preemptive right. The learned Judges held that a sale in favour of a person having an equal right of pre-emption cannot defeat the plaintiff''s right to pre-empt.
The learned Judges followed the earlier Full Bench case of the same High Court in AIR 1946 142 (Lahore) . That was a case where the plaintiff pre-emptor and the transferees'' pre-emptor pendente lite had equal right of pre-emption. But what would be the position if one of them has a superior-right of pre-emption. The exact question came up for consideration before the Full Bench of this Court consisting of Sinha C. J. (as he then was) and Hidayatullah J. (as he then was) and Rao J. in Ram Deo and another v. Gangu Bai and others 1952 NLJ 1 : AIR 1952 Nag. 51 : ILR 1981 Nag. 830. That was a case where the pre-emptor having an inferior right of pre-emption had filed a suit to enforce his right. During the pendency of that suit, a person having a superior right of pre-emption had taken a sale deed privately without enforcing his right in a Court of Law. The learned Judges of the Full Bench held that the superior pre-emptor, although he may not have enforced his right in a Court of Law, would not be affected by the suit of the inferior pre-emptor. The learned Judges further held that the suit of the inferior pre-emptor would have to be dismissed, in view of the sale deed taken by the superior pre-emptor privately. Of course, so far as the question of lis pendens is concerned, I am bound by the decision of the Division Bench in the present case, but it is only for the purpose of ascertaining the legal effect of that doctrine that I am required to consider this aspect with reference to the question as to what right the appellants obtained by the decree in their favour. In my opinion, the legal effect would be as held by the learned Judges of the Full Bench, that as the person having an inferior right would not be able to enforce it against a person having a superior right, and unless that question is tried between them, the decree obtained by a person having an inferior right will not defeat the right of a person having a superior right.
The learned counsel for the appellants invited attention to the dictum laid down by their Lordships of the Privy Council in Dutt maharaj v. Sukur Mohommed laying down that the doctrine of lis pendens would be applicable even to a suit where the claim is compromised. There can be no doubt about that proposition. It is not the applicability of the doctrine of lis pendens that we are really to consider in the present case. The matter has been concluded by the decision of the Division Bench. It is only the effect on the rights of the parties that I am required to consider. Therefore, as already indicated earlier, I prevented the learned counsel for the respondents from arguing the question relating to the applicability of the doctrine of lis pendens. There can be no doubt that the said doctrine applied to the present case. But, as already indicated by me earlier, that alone does not solve the problem.
In Nagubai Ammal and Others Vs. B. Shama Rao and Others, , their Lordships of the Supreme Court made the following observations with reference to the legal effect of the doctrine of lis pendens:
It was finally contended that the purchase by Devamma in execution of the decree in O.S. No. 100 of 1919-20 was void and conferred no title on her, because the Official Receiver in whom the estate of Keshavananda, the mortgagor, had vested on his adjudication as insolvent on 19-2-1926 had not been made a party to those proceedings, and that, in consequence, the title of Dr. Nanjunda Rao and his successors under the sale deed dated 30-1-1920 continued to subsist, notwithstanding the Court auction sale on 2-8-1928.
The obvious answer to this contention is that the properties which were sold on 2-8-1928 did not vest in the Official Receiver on the making of the order of adjudication on 19-2-1926, as they had been transferred by the mortgagor, long prior to the presentation of Insolvency Case No. 4 of 1925-26 under the very sale deed dated 30-1-1920, which forma the root of the appellants'' title. That sale was no doubt pendente lite, but the effect of section 62 is not to wipe it out altogether but to subordinate it to the rights based on the decree in the suit.
As between the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee. u/s 28 (2) of the Insolvency Act, what vests in the Official Receiver is only the property of the insolvent, and as the suit properties had ceased to be his properties by reason of the sale deed dated 30-1-1920, they did not vest in the Official Receiver, and the sale held on 2-8-1928 is not liable to be attacked on the ground that he had not been impleaded as a party thereto.
But it is argued for the appellants that having regard to the words of section 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be ''non eat'', that in consequence Keshavanands must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action.
This contention gives no effect to the words "So as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.
It will be inconsistent to hold that the sale deed dated 30-1-1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of section 52, be treated as still retaining title to the properties.
Therefore, what their Lordships laid down was that the effect of section 52 of the Transfer of Property Act would not be to wipe out a transfer pendente lite altogether; but would be only to subordinate it on the rights based on the decree passed in the suit. It is this aspect that I am required to consider in the present case.
In Bishan Singh and Others Vs. Khazan Singh and Another, , their Lordships had to consider the effect of the doctrine of lis pendens with reference to the pre-existing and subsisting right prior to the filing of the suit by a pre-emptor:
In view of the aforesaid four Full Bench decisions-three of the Lahore High Court and the fourth of the East Punjab High Court-a further consideration of the case is unnecessary. The settled law in the Punjab may be summarized thus :
The doctrine of lis pendens applied only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.
The learned counsel for the appellants invited attention to the Full Bench case of Lakshmanan Vs. Kamal, , regarding the scope and applicability of the doctrine of lis pendens u/s 52 of the Transfer of Property Act. There can be no doubt that the doctrine of lis pendens is applicable to the respondents. But it is only the legal effect of the same on the rights of the parties that we are required to consider in the present case.
In Ghasiram Vs. Shankarlal and Others, Dixit J. (now C. J.) held that although a contract of sale of immovable property would not create any interest in the property in favour of the vendee, there can be no doubt that he would be able to enforce his contract against a subsequent contractee and the matter would be governed by section 27(b) of the Specific Relief Act. I am in respectful agreement, with the view that as between a prior contractee and a subsequent contractee, the ultimate result will depend on the trial of the issue u/s 27(b) of the Specific Relief Act. As such, I am of opinion that the question relating to the rights of the appellants as against the rights of the respondents would depend on the decision of the question u/s 27(b) of the Specific Belief Act as to what would be the inevitable legal effect of the doctrine of lis pendens which applies to the present case. As the appellants failed to prove their ease u/s 27(b) of the Specific Relief Act, I am of opinion that they cannot succeed in resisting the respondents'' suit for possession. As the respondents have been found to be having a superior right of specific performance against the appellants, the sale deed taken by them privately during the pendency of the appellants'' suit would not be affected by the decree in favour of the appellants, inasmuch as they had not obtained any right against the respondents by the said decree; and on the principle laid down by a Full Bench of this Court in Ramdeo v. Gangubai and Others 1952 NLJ 1 : ILR 1951 Nag. 830 : AIR 1952 Nag. 51, the right of a person having a superior right of specific performance would not be defeated by the decree passed in a suit filed by a person having inferior right. Therefore, I am of opinion that the decree passed by the first appellate Court was correct.
As a result, this appeal fails and is dismissed with costs throughout. Counsel''s fee according to schedule or certificate, whichever be less. Leave for filing Letters Patent Appeal is refused.