Section 52 of the Transfer of Property Act does not impose an obligation on a plaintiff to implead pendente lite transferees in specific performance suits.

JUDGMENT

It is so strange enough that the First Appellate Court remanded a decree for specific performance of a contract for sale for the purpose of impleading the pendente lite transferee without knowing the scope and ambit of Section 52 of the Transfer of Property Act and the legal impact thereof.

2. It is a suit for specific performance of Ext.A1 contract for sale between the plaintiff and the sole defendant, by which, the parties had agreed to sell the property for a total consideration of Rs.70,000/- and an amount of Rs.50,000/- was received by way of advance. It is pertaining to 14 cents of property. The agreement is dated 08.02.2012 and the period agreed upon was up to 15.03.2012. It is thereafter on 21.03.2012, the present suit was instituted by the plaintiff for specific performance. The due execution of the agreement in question and the signature found affixed as that of the defendant was disputed and denied by the defendant.

3. In order to prove the due execution of the agreement, the plaintiff gave oral evidence directly as PW1 and examined two witnesses to the document PW2 and PW3, who are the daughter and son-in-law of the defendant. Nothing was pleaded in the written statement with respect to any enmity or animosity entertained by him as against his daughter PW2 and the son-in-law- PW3. No such case was advanced anywhere in the written statement and no pleading was raised by the defendant. But in the box, he had given a version that they are in inimical terms, that too, after the examination of daughter and son-in-law as the witnesses to plaintiff. The credibility of PW2 and PW3 was tested by cross-examination and nothing was elucidated in order to reject their oral evidence. They have given oral evidence in tune with what is spoken by PW1, the plaintiff regarding the due execution of Ext.A1 agreement. In fact, they are the signatories to the document being the two witnesses to the execution of Ext.A1 agreement. PW2 categorically submitted that she had witnessed the due execution of Ext.A1 agreement by her father and stood as witness to the same. It was also made clear by her that it was pertaining to 14 cents of property belonged to the father and the agreement was entered into after a discussion. The son-in-law also gave oral evidence in tune with what is spoken by PW2 and also PW1. Nothing was brought out to discredit their evidence except the version given by Dw1, the defendant, that he was not in good terms with the son-in-law and the daughter, for which no specific incident was either mentioned or let in evidence.

4. It is brought to the notice of this court that the entire sale consideration was deposited in furtherance of the decree granted by the trial court and nothing was brought to the notice of this court in order to show that the plaintiff was not ready and willing to perform his part of contract. On the other hand, the balance sale consideration comes to only Rs.20,000/-. No case was advanced that the plaintiff was not having capacity to collect such an amount during the relevant period.

5. The first appellate court without attending the merits and demerits of the case and without rendering adjudication on the disputed issues simply remanded the matter back to the trial court on the sole ground that the pendente lite transferee was not included in the party array of the suit and thereby had overlooked the scope and ambit of Section 52 of the Transfer of Property Act . The doctrine of lis pendens embodied under of the based on the maxim “ut lite pendente nihil innovetur” is intended to give effect to the decree that may be passed in a litigation by a competent court and to avoid defeating the decree by transfer of the subject of the suit to third persons, who are not in the party array of the suit. The provision really engulfs the elements of principle of res judicata, based on the principle that the decree that may be passed in a suit would bind on the persons litigating under any of the par