An agreement for sale of property is enforceable even if made during the pendency of a suit for partition and the defendant was restrained by an injunction from transferring the disputed property.

Bhaskar Bhattacharya, J. : This second appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated July 24, 1989 passed by the learned Assistant District Judge, 2nd Court, Alipore in Title Appeal No. 226 of 1987 thereby reversing those dated December 23, 1986 passed by the learned Munsif, 5th Court, Alipore in Title Suit No. 346 of 1981.

2. The only question that arises for determination in this second appeal is whether an agreement for sale of property is enforceable if such an agreement was made during the pendency of a suit for partition and the defendant was at that point of time restrained by an order of injunction from transferring the disputed property.

3. The learned trial Judge granted a decree for specific performance of contract subject to the decision of the pending suit for partition. The learned trial Judge further directed the defendant to apply for permission to sell the property within a specified period. In case of default, the plaintiff was given liberty to get the deed executed after obtaining permission of the court where the partition suit is pending.

4. Being dissatisfied, the defendant preferred an appeal before the first appellate court which has set aside the decree for specific performance and instead passed a decree for refund of earnest money with interest. According to the learned first appellate court below, the agreement was not enforceable.

5. Mr. Ghosh, the learned advocate appearing on behalf of the plaintiff has contended that a sale during pendency of a suit is valid and operative between the parties but the transferee will acquire title to the property subject to the decision of the pending suit. According to Mr. Ghosh, even if a sale deed is executed in violation of an order of injunction prohibiting such transfer, the vendee will no doubt acquire title to the property although the vendor will face the consequences for violation of the order of injunction. But, Mr. Ghosh continues, an agreement for sale in violation of the order of injunction or during the pendency of a suit in which any right to such property is specifically in question cannot be said to be void so as to disentitle the plaintiff from enforcing such agreement.

6. Mr. Shaw appearing on behalf of the defendant/respondent has on the other hand supported the judgment and decree passed by the court of appeal below and has contended that in view of specific order of injunction granted by court against his client, the said agreement is opposed to law and cannot be enforced. In support of such contention Mr. Shaw relies upon a Division Bench decision of Patna High Court in the case of Karunamoy vs. Kumar Pashupati, reported in AIR 1952 pat 139.

7. In view of the decision of the Apex Court in the case of Nagubai vs. B. Shama Rao, reported in AIR 1956 SC 593, upon which Mr. Ghosh has placed strong reliance, the law is now settled that the effect of section 52 of the Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operates to vest title of the transferor in the transferee. Therefore, the learned court of appeal below erred in law in holding that an agreement pendente lite cannot be given effect to.

8. Now comes to the other question viz. whether an agreement to transfer is void being violative of an order of injunction prohibiting such transfer?

9. The law relating to transfer in violation of an existing order of injunction has undergone a total change in recent time. Previously, the consistent view of almost all the courts in India was that an order of injunction does not in any way militate against the right, title and interest in the property of the party against whom such injunction has been ordered unlike an order of attachment which makes the property in custodia legis.