Important points:
" A contract for sale of the subject-matter of the suit during the pendency of the suit, would adversely affect the parties to the suit, and others claiming right under them.
" The sale deed has not been executed and the property has not been transferred during the pendency of the suits or the appeals and therefore, the bar under S.52 of the Transfer of Property Act will not come into play in this case. Ext.A1 agreement is only a contract for sale of the said properties, and the same cannot be construed as a document of transfer of the property
" Creation of a contract capable of specific performance, though not an alienation by itself, is a mode of dealing with the property, pregnant with very mischief, which section 52 of the Act seeks to obviate.

K.Harilal, J.

1. Whether an agreement for sale executed by a party to the lis, during the pendency of the suit is hit by the doctrine of lis pendens or not? This is the question that has been referred to this Full Bench for an authoritative pronouncement by the Reference Order. According to the Division Bench, which passed the reference order, section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Act') is categoric, that the property cannot be transferred or 'otherwise dealt with' by any party to the suit, so as to affect the rights of the other. This is the view expressed in Kubra Bibi v. Khudaija Bibi [AIR 1917 Oudh 193]. In this decision, the court held as follows:

“The creation of a contract, capable of specific performance, though not an alienation by itself, is a mode of dealing with the property pregnant with the very mischief which section 52 of the Transfer of Property Act seeks to obviate.”

2. But, a Division Bench of this Court in Wellingdon B. and others v. D.Shyama Prasad and others 2014 (3) KHC 560 : 2014 (3) KLJ 697 took a different view and held as follows:

“In fact, the contention that Ext.A1 is unenforceable as it is hit by S.52 of the Transfer of Property Act is not legally sustainable. As rightly found by the Court below, the bar under S.52 is for the transfer of the property in respect of which a suit or proceedings is pending, in which any right to the said immovable property is directly and specifically in question. Here, the sale deed has not been executed and the property has not been transferred during the pendency of the suits or the appeals and therefore, the bar under S.52 of the Transfer of Property Act will not come into play in this case. Ext.A1 agreement is only a contract for sale of the said properties, and the same cannot be construed as a document of transfer of the property.”

3. Further, the Division Bench doubted the aforesaid view, by observing that it is difficult to agree with the exposition of law by the Divison Bench on the rigour of Section 52 of the Act, which has a vital bearing on the enforceability of an agreement, executed during the pendency of the original suit. Thus, the legality and correctness of the aforesaid view expressed by the Division Bench of this court in Wellingdon B. and others case (supra) have been doubted in this reference.

4. Heard Sri.Bindu Sasthamangalam, the learned counsel appearing for the appellant and Sri.K.S.Bharathan, the learned counsel appearing for the respondents.

5. The learned counsel appearing for the appellant advanced arguments contending that the decision laid down by the Division Bench in Wellingdon B. and others case (supra), is not in terms with the statutory mandate under section 52 of the Act. The decision in Kubra Bibi's case (supra) is the correct law, which stands in conformity with section 52 of the Act.

6. Per contra, the learned counsel appearing for the respondents opposed the said argument and contended that any mode of dealing with the subject-matter of the suit, during the pendency of the suit, is not absolutely barred by section 52 of the Act. In short, according to him, the 2nd limb “otherwise dealt with by any party to the suit” is not an absolute bar against all kind of transactions and agreement for sale would not fall in the mischief, which section 52 of the Act seeks to obviate.

7. At first, let us examine section 52 of the Act, the relevant law, from which the reference arises out. Section 52 reads thus:

“52.Transfer of property pending suit relating thereto.—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 proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the