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 RSA No.1564 of 2012 and other connected matters                               9



Question No.1

(i) Whether rule of lis pendence as provided under Section 52 of the Transfer of Property Act, 1882 applies to the sale- deeds which are consequent upon prior agreement to sell executed before filing of the suit.

Section 52 of the Transfer of Property Act, 1882 (`the Act of 1882) provides that during the pendency of any suit or proceeding which is not collusive, and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with and if it is dealt with the subsequent purchaser would be governed by rule of lis pendence and therefore bound by the result in the litigation. Section 52 of the Act of 1882 is extracted as under:-

servient to the result of the litigation. This is called rule of lis pendence. However, question is whether rule of lis pendence would apply to the aforesaid transfer of property which was in continuation of series of transactions which took place before filing of the suit. Rule of lis pendence is to save an honest litigant from the adverse effects of subsequent transfers by other party to the litigation. However, rule of lis pendence is not to save an unscrupulous litigant who is misusing the process of court.

Rule of lis pendence is known as 'pendente lite nihil innovetur'. Such principle is based on equity and good conscious and is intended to protect the parties to a litigation against alienation made by their opponents during the pendency of the suit. The doctrine of lis pendence does not operate so as to defeat the right existing before the date of filing of the suit.

This question can be examined from another angle. While deciding the suit for specific performance of the agreement to sell the court only records finding with regard to genuineness of the agreement to sell and adjudicate upon the rights of the plaintiff to get relief of specific performance of the agreement to sell. In such suit, question of title of the owner is not decided. While decreeing a suit for specific performance of the agreement to sell, the court is declaring that the agreement to sell propounded by the plaintiff is capable of specific performance. However, such specific performance of the agreement to sell would always be subject to the rights of vendor.

A careful reading of the aforesaid last clause, which deals with contract for sale (Agreement to sell) only provides that the agreement to sell or contract for sale does not create any interest in such property. However, the agreement to sell create a right to the immovable property in favour of the agreement holder who can seek specific performance. Hence, in the considered view of this Court, the rule of lis pendence in the facts of the present case would 11 of 19 RSA No.1564 of 2012 and other connected matters 12 not apply. The rule of lis pendence cannot be applied in a manner which would defeat the rights of prior agreement holders of the agreement to sell only because sale-deeds were executed in their favour during the pendency of the suit. In the present case, as noted while discussing the facts, execution of the prior agreement to sell in favour of Shri O.P.Gupta, who assigned his rights in favour of Karambir Vasishth etc is proved on file, therefore, the rights of Rekha Rani in the property were subject to the rights of Shri O.P.Gupta or Karambir Vasishth. Shri N.K.Mair has also stepped into the shoes of Smt.Rekha Rani. Hence, Shri N.K.Mair is also bound by the agreement to sell executed by his predecessor-in-interest, i.e. Smt.Rekha Rani.