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RAJASTHAN HIGH COURT
Nisha Gupta, J.
Harphool (died during first appeal) & Ors. —Appellants
versus
Ghamandi Lal & Ors. —Respondents
S.B.Civil First Appeal No.81 of 1984
Decided on 25.11.2014
Counsel for the Parties:
For the Appellants/Applicants:Mr.Alok Chaturvedi, Advocate, N.K.Maloo, Sr. Advocate with Mr.V.K.Tamolia, Advocate
For the Respondents:Mr.Sudesh Bansal, Advocate
IMPORTANT POINT
Subsequent purchase hit by provisions of S. 52 of Transfer of Property Act.
Headnote:(i) Civil Procedure Code, 1908 — Order I, Rule 10 — Specific Relief Act, 1963 — Section 31 — Transfer of Property Act, 1882 — Section 52 — Proper form of decree is to direct specific performance of contract between vendor and prior transferee — And direct subsequent transferee to join in conveyance so as to pass on title — Which resides in him to prior transferee — He does not join in any special covenants made between prior transferee and his vendor — All he does is to pass on his title to prior transferee. (Paras 10 & 11)
(ii) Specific Relief Act, 1963 — Section 19 (b) — Transfer of Property Act, 1882 — Section 52 — Appellants bona fide purchasers — But principle of lis pendence rightly applied by court below — As property purchased during pendency of earlier suit — S. 19-B not having overriding effect on provisions of S. 52 of TP Act. (Para 8)
Result: Appeal dismissed.
Certainly. Based on the provided legal document, here are the key points summarized:
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The court emphasized that the proper form of a decree in cases involving specific performance is to direct the vendor to perform the contract with the prior transferee and to direct subsequent transferees to join in the conveyance to pass on the title, which resides with them (!) .
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The court clarified that a subsequent purchaser who buys property during the pendency of a suit (lis pendens) is generally protected, but this protection does not override the provisions of Section 52 of the Transfer of Property Act, which deals with the effect of pendency of a suit on the transfer of property (!) (!) .
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The court found that the sale in favor of the appellants was hit by the provisions of Section 52 of the Transfer of Property Act because the property was purchased during the pendency of an earlier suit, and the principles of lis pendens applied (!) (!) .
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The appellants argued that their purchase was bona fide, with consideration, and without notice of the earlier agreement. They also contended that their rights should be protected under the relevant provisions of the law (!) .
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The court noted that the earlier suit was filed before the subsequent sale, and the principles of lis pendens applied, which restricts the rights of subsequent purchasers who buy during the pendency of a suit, even if they are bona fide (!) (!) .
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It was observed that the defendant in the suit admitted the agreement, and the court considered the merits of the case, ultimately decreeing the suit for specific performance. The court also stated that the plea of collusion was not sufficiently pleaded or established (!) (!) (!) .
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The court held that the protection offered by Section 19B of the Specific Relief Act does not have overriding effect over Section 52 of the Transfer of Property Act, especially when the property was purchased during the pendency of the suit (!) (!) .
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The appeal was dismissed because the court found that the subsequent purchase was invalid due to the operation of Section 52, and the lower court's reasoning was justified based on the evidence and legal principles (!) (!) .
These points collectively reinforce that in cases of pending litigation relating to property, the provisions of Section 52 of the Transfer of Property Act take precedence, and subsequent bona fide purchasers are protected only if they acquire the property outside the scope of the pendency of such suits.
Nisha Gupta, J.—This is defendant’s first appeal against the judgment and decree dated 7.7.1984 passed by Additional District Judge, Kishangarhbas Distt.Alwar in Civil Suit No.44/1980 (79/79) whereby the suit for specific performance of the agreement to sale has been decreed.
2. The brief facts of the case giving rise to this appeal are that plaintiff respondent filed a suit for specific performance of the contract for sale of agricultural land measuring 10 bighas and 3 biswas. Initially, the suit was filed against defendant respondent No.3 Gordhan Lal only. The case of the plaintiff respondent was that Gordhan Lal executed an agreement to sale Ex.1 in respect of the agricultural field on 17.5.1979 for a sum of Rs.34,500 in favour of plaintiffs and a sum of Rs.20,000 was paid in cash and receipt Ex.2 was issued on the same day. It was also pleaded that the balance amount was agreed to be paid on 15.12.1979 at the time of registration of sale deed, sum of 14,500 was paid on 17.11.1979 and it was agreed that the registration of the sale deed shall be made on 18.11.1979 but thereafter, respondent Gordhan Lal refused to execute the sale deed though the plaintiff respondents were prepared to perform their part of the agreement and are still ready to do so. A damages of Rs.1,000 has also been claimed and suit has been filed for specific performance of the contract. Gordhan Lal in his written statement admitted the entire claim of the plaintiff. During the pendency of the suit, the present appellant filed an application under O.1 R.10 CPC for becoming a party to the suit, as the property has been purchased by them. The respondents No.4 and 5 filed a joint written statement and contested the suit on the grounds that they had no knowledge of any agreement to sale dated 17.5.1979 they are the bonafide purchaser without notice of earlier sale, the suit is collusive between the plaintiff and the defendant Gordhan Lal and their right should be protected.
3. On the pleadings of the parties, initially four issues have been framed. Thereafter, issue No.4A has been added. After hearing, the suit has been decreed, hence this appeal.
4. The contention of the appellants is that suit is mainly decreed on the principle of Section52 of the Transfer of Property Act which deals with the theory of lis pendence but here in the present case, the suit was collusive between the plaintiff and the defendant Gordhan Lal and hence Section 52 of the Transfer of Property Act has no application on the sale which has been made in faovur of appellants. They are the bona fide purchasers, they have purchased the property with consideration without notice of the earlier agreement, the collusion is proved as the defendant Gordhan Lal has admitted the claim of the plaintiff and also stands witness in his favour. Reference has also been made to the provisions of Section 19B of the Specific Relief Act and contention of the appellants is that his right should be protected. He is in possession of the property. The possession never handed over to the plaintiffs and his further contention is that he has a valid registered sale deed in his favour and no relief for cancellation of the same has been sought and suit could not be decreed in view of the provisions of Section 31 of the Specific Relief Act and the court below has erred in holding that suit was not collusive, hence the appeal be allowed and suit should be dismissed.
Per contra, the contention on behalf of the respondents is that the decree has already been executed on 23.9.2011, hence the whole issue is now only academic. The plea of bona fide purchaser is not available to the person who has purchased the property pendente lite. Section 52 of the Transfer of Property Act is exception to the law laid down in 19B of the Specific Relief Act. Otherwise provisions of Section 52 of the Transfer of Property Act would be redundant. There could not be any collision between the plaintiff and the defendant Gordhan Lal as
