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TMI Blog2010 (10) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... he said respondent had mortgaged the entire land in favour of the predecessor-in-interest of the appellant, namely, Har Narain (since deceased and now represented through his LRs.) for ₹ 7,000/-. The appellant was also put in possession of the said land. The respondent No. 1 entered into an Agreement for Sale of 8 kanals of the said property with the appellant for ₹ 7500/- and he received ₹ 200/- as earnest money in cash while a sum of ₹ 7000/- to be adjusted as mortgage amount. However, the said respondent No. 1 executed the sale deed on 2.8.1971 in favour of respondent Nos. 2 to 6. 3. Being aggrieved, the appellant filed Suit No. 172 of 1971, for specific performance against the respondent No. 1 for executing the sale deed of the land in question on 10.8.1971 and the trial Court restrained him from alienating the suit property by any means. Respondent No. 1 moved an application dated 16.8.1971 for vacating/modifying the interim order dated 10.8.1971 wherein he disclosed that the entire land in dispute had already been alienated in favour of respondent Nos. 2 to 6. However, the sale deed executed in favour of the said respondents was registered on 3.9.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer the title unless the deed is registered as required under Section 52 of the Transfer of Property Act, 1882 (hereinafter called the 'Act, 1882) and Section 17 of the 'Act 1908. In case, the appellant had been in the possession of the suit land being the mortgagee of the entire property since long, the question of protection under Section 19(b) of the Specific Relief Act, 1963 (hereinafter called the 'Act 1963') to the respondent Nos. 2 to 6 that they were bonafide purchasers for value and paid money in good faith without notice of the earlier contract, becomes meaningless for the reason that they had a notice that the land was in possession of the appellant and this fact had also been mentioned by the respondent No. 1 in the sale deed dated 2.8.1971 in their favour. Thus, the appeals deserve to be allowed. 6. On the contrary, Shri R.K. Kapoor, learned Counsel appearing for the respondents has vehemently opposed the appeals contending that there are concurrent findings of fact by three courts and this Court being the fourth court should not re-appreciate the factual matrix of the case and interfere in the appeals. The sale deed might have been registered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the provisions of Section 19 of the Act, 1963. 9. Section 54 of the Act, 1882, mandatorily requires that the sale of any immovable property of the value of hundred rupees and upward can be made only by a registered instrument. Section 47 of the Act, 1908, provides that registration of the document shall relate back to the date of the execution of the document. Thus, the aforesaid two provisions make it crystal clear that sale deed in question requires registration. Even if registration had been done subsequent to the filing of Suit, it related back to the date of execution of the sale deed, which was prior to institution of the Suit. A similar issue though in a case of right of pre-emption was considered by the Constitution Bench of this Court in Ram Saran Lall and Ors. v. Mst. Domini Kuer and Ors., AIR 1961 SC 1747, by the majority of 3:2, the Court came to the conclusion that as the mere execution of the sale deed could not make the same effective and registration thereof was necessary, it was of no consequence unless the registration was made. Thus, in spite of the fact that the Act, 1908, could relate back to the date of execution in view of provisions of Section 47 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar issue and considered the effect of doctrine of lis pendens and the provisions of Section 19(b) of the Act, 1963. Facts of the said case had been that an agreement to sell stood executed between the first purchaser and owner of the land on 4th July, 1974 for a sum of ₹ 30,000/- and a sum of ₹ 5,000/- was given as advance. The remaining amount was to be paid before 31st July, 1974. As the said amount was not paid, the owner again sold the suit property to another party (appellant) on 5th May, 1975 for a sum of ₹ 45,000/- and possession of the suit property was handed over to the appellant therein. Thus, the first purchaser filed the suit for enforcement of the specific performance of the contract. The trial court dismissed the Suit holding that the agreement was genuine and appellant was a bona fide purchaser for value paid in good faith, without notice of the earlier agreement, therefore, no decree for specific performance could be passed in favour of the plaintiff therein. The First Appellate Court reversed the said judgment and decree. The Second Appeal was dismissed by the High Court. This Court considered the provisions of Section 52 of the Act, 1882, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19(b) of the Act, 1963 and definition of notice contained under Section 3 of the Act, 1882, it could not be held that the subsequent purchasers were bona fide purchasers in good faith for value without notice of the original contract and they were required to make inquiry as to the nature of the possession or title or further interest, if any, of the other party over the suit property at the time when they entered into sale transaction, notwithstanding, that they were already aware that the other party was in possession of the suit property as the tenant. Thus, what is material is the inquiry at the time when subsequent sale transaction was entered into. 15. The instant case is squarely covered by the aforesaid judgment, so far as this issue is concerned. The subsequent purchaser has to be aware before he purchases the suit property. Thus, we are of the considered opinion that respondent Nos. 2 to 6 could not be held to be bona fide purchasers for value paid in good faith without notice of the original contract and the sale in their favour was subject to the doctrine of lis pendens. Legal maxim, pendente lite, nihil innovetur; provides that as to the rights of the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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