Karuppiah v. Karuppiah Servai — 1998 DIGILAW 744 (MAD)

Judgment :- 1. The plaintiff who lost before both the Courts below is the appellant. The facts leading to the present Second Appeal are as follows: (The parties will be referred to as per their ranks in the suit or by their names.) One Subbiah Servai whose legal representatives are defendants 3 to 7 entered into an agreement for sale of an extent of 2 acres in Lembalakudi Village, Thirumayam Taluk, with the first defendant on 25.2.1965. He filed suit O.S. No. 368/65 before the District Munsif, Pudukkottai, against the first defendant for specific performance of the agreement for sale. The suit was decreed on 11.10.1966. However, the appeal filed by the first defendant in A.S. No. 9/67 was allowed on 19.4.1968. On 31.7.1968 defendants 1 and 2 executed a sale deed in respect of plaint ‘A’ schedule properties to the plaintiff. Again, on 19.2.1969 under Ex.A-1 they executed a sale deed in respect of plaint ‘B’ schedule properties to the plaintiff. On 28.10.1971 the Second Appeal filed by the said Subbiah Servai was allowed. Subbiah Servai filed an execution petition in E.P. No. 792/73 for a direction to the first defendant to execute a sale deed in his favour. There were several objections raised by the first defendant with regard to the identity of the properties contending that no survey number or subdivision number had been given in the decree for Specific Performance. The matter went to the District Court in C.M.A. No. 42/74 and ultimately this Court in C.R.P. No. 2558/75. In the meantime, Subbiah Servai died and his legal representatives - defendants 3 to 7 - pursued the matter. In C.R.P. No. 2558/75 this Court observed that even without praying for an amendment of decree in respect of the description or the extent in survey number, the decree holder could execute the decree and that there would be a sale deed in respect of the lands comprised within the four boundaries described in the decree itself. The present suit came to be filed on the basis of the sale deeds Ex.A-2 and A-1. Thereafter, O.S. No. 148/79 came to be filed by the present appellant before the District Munsifs Court, Pudukkottai, on the basis of Exs.A-1 and A-2 seeking declaration, permanent injunction and mandatory injunction. 2. The present suit came to be filed on the basis of the sale deeds Ex.A-2 and A-1. Thereafter, O.S. No. 148/79 came to be filed by the present appellant before the District Munsifs Court, Pudukkottai, on the basis of Exs.A-1 and A-2 seeking declaration, permanent injunction and mandatory injunction. 2. The trial Court framed the necessary issues on the basis of the pleadings and by its judgment and decree dated 19.9.1981 dismissed the suit holding as follows: “The plaintiff would not derive any title under Exs.A-1 and A-2, that the present suit was hit by the doctrine of lis pendens, that the decree obtained by Subbiah Servai was executable and therefore he was not entitled to any relief.” This was confirmed in the appeal in A.S. No. 25/82 by the learned Subordinate Judge. Pudukkottai, by his judgment and decree dated 9.8.1982. 3. At the time of admission the following substantial question of law has been raised for decision in the Second Appeal: “Whether the suit is barred by the principles of res judicata by reason of the decision in O.S. No. 368/65 on the file of the District Munsifs Court, Pudukkottai?” 4. Though several points have been raised in the Memorandum of Grounds of Second Appeal, the thrust of the argument by Mr. V. Singan, the learned Counsel for the appellant, relates to lis pendens. The question regarding the identity of the property is not seriously pressed. According to the learned Counsel, the doctrine of lis pendens , which has been put against the plaintiff/appellant will not arise at all in a suit for Specific Performance where the agreement holder does not get any right eo instanti , that is to say, there is no transfer eo instanti. The learned Counsel relied on a number of decisions in support of his submissions. 5. The first decision relied on by the learned Counsel is the one reported in N. Dhanalakshmi and others v. S. Ekanathan, Proprietor, Ekanathan Real Estates (1998 I MLJ 132). The learned Counsel relied on a number of decisions in support of his submissions. 5. The first decision relied on by the learned Counsel is the one reported in N. Dhanalakshmi and others v. S. Ekanathan, Proprietor, Ekanathan Real Estates (1998 I MLJ 132). A Bench of this court, having regard to the facts of that case, held that, “Principally the suit was for specific performance of the agreement and alternatively for the relief of refund of money, that even the ancillary relief of permanent injunction was also for restraining the defendants from alienating or dealing with the suit property in anyway, that is to say that the suit was not one for title or possession and that the reliefs sought for were against the defendant in personam and therefore the suit filed by the plaintiff was not for land.” The Bench held that, “the suit for specific performance of an agreement in respect of land was not a suit for land so as to be included within the ambit of Letters Patent, (Madras) Cl. 12.” The Original Side Appeal before the Bench was against the order of a learned single Judge granting leave to institute a suit for Specific Performance in respect of a property not situate within the jurisdiction of this Court. On the facts of that case, the Bench held that the suit for Specific Performance was not one for title or possession with regard to immovable property. I fail to see as to how this decision will help the case of the plaintiff/appellant. 6. The next decision relied on by the learned Counsel is the one in Vimala Animal v. C. Suseela and others (1990 II MLJ 127). In that case, it was held by Abdul Hadi, J. that subsequent transferee not having been made a party to the proceedings, the decree for Specific Performance would not be binding on him. The learned Counsel relies on this decision for the purpose of showing that in the present suit the plaintiff, who had purchased the properties on 31.7.1968 and 19.2.1969 had not been made a party and therefore the decree for Specific Performance would not be binding on him. The learned Counsel relies on this decision for the purpose of showing that in the present suit the plaintiff, who had purchased the properties on 31.7.1968 and 19.2.1969 had not been made a party and therefore the decree for Specific Performance would not be binding on him. That was a case where it was held following a Bench of this Court in Veeramalai v. Thadikara (AIR 1958 Madras 383 = 1958 1 MLJ 437) that the subsequent transferee referred to by the Bench could obtain the benefit of his transfer by purchase, which prima facie he had no right to get, only after satisfying two conditions concurrently, viz. (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and without notice of the prior contract. he learned Judge has also referred to the further observation made by the Bench that the burden of proof was upon the subsequent purchaser to establish these conditions in order that his rights might prevail over the prior agreement of sale. In the present case, no attempt appears to have been made to establish the above two conditions. The decision therefore does not help the plaintiff/appellant. 7. The learned Counsel then relied on the judgment of the Supreme Court in Dwarka Prasad Singh and others v. Harikant Prasad Singh and others ( AIR 1973 SC 655 ). In that case the suit was filed against the vendor and the subsequent purchaser for Specific Performance or in the alternative for recovery of possession. Pending appeal the vendor died and his legal representatives were not brought on record. It was held by the Supreme Court that abatement of appeal against the vendor was fatal to the entire appeal. I fail to see as to how this case will help the appellant. In that case which was a suit for Specific Performance against the purchaser with notice of a prior agreement of sale the question was whether the vendor was a necessary party or not. It was argued that the vendor was not a necessary party. It was held by the Supreme Court with reference to the facts of that case that there was also a prayer for refund of money and no relief could be granted in the absence of the vendor or his legal representatives. It was argued that the vendor was not a necessary party. It was held by the Supreme Court with reference to the facts of that case that there was also a prayer for refund of money and no relief could be granted in the absence of the vendor or his legal representatives. The Supreme Court referred to its own earlier decision in R.C. Chandiok v. Chuni Lal Sabharwal ( 1971 2 SCR 573 = AIR 1971 SC 1238 ) which in its turn while passing a decree for Specific Performance of a contract gave a direction that the decree should be in the same form as in Lala Durga Prasads case ( 1954 SCR 360 = AIR 1954 SC 75 = 67 L.W. 945). 8. In Durga Prasads case it was held that, “the proper form of decree was to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resided in him to the prior transferee.” That was a case where the subsequent alienee was already there before the filing of the suit and he was also mmade a party. That is not the case in the present suit. The agreement was in 1965 followed by a suit immediately. The transfers were subsequent in 1968 and 1969. The Supreme Court cases have no application to the facts of the present case. There is nothing to show in the present suit that Subbiah Servai knew about the subsequent transfer. 8. In Ramesh Chandra Chandiok and another v. Chuni La1 Sabharwal ( 1971 2 SCR 573 = AIR 1971 S.C. 1238 ) already referred to it was common case that the plot had been transferred by the vendors and it was stated that the proper form of decree would be as in Lala Durga Prasads case ( AIR 1954 SC 75 = 67 L.W. 945). 9. The next case relied on by the learned Counsel is the decision of the Supreme Court in Babu Lal v. Mis. Hazari Lal Kishori Lal and others ( AIR 1982 SC 818 = 95 L.W. 106 S.N.). In that case the agreement holders filed suit against vendors. The vendors had sold the property to another in defiance of the previous agreement. The suit was decreed by the Appellate Court. Hazari Lal Kishori Lal and others ( AIR 1982 SC 818 = 95 L.W. 106 S.N.). In that case the agreement holders filed suit against vendors. The vendors had sold the property to another in defiance of the previous agreement. The suit was decreed by the Appellate Court. The High Court in Second Appeal confirmed the decree of the lower Appellate Court with a modification that the subsequent purchaser also should join in the execution of the sale deed. On E.P. being filed the subsequent purchaser raised objection under Section 47 of the Specific Relief Act. The High Court modified the order of the Courts below holding that the decree-holder will be entitled to possession also. The word ‘proceeding’ in Section 22 of the Specific Relief Act included execution proceedings and it had been so enacted only to avoid multiplicity of proceedings. It was also held by the Supreme Court that “the limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. The word ‘proceeding’ is a term giving the widest freedom to a Court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.” 10. The learned Counsel drew the attention of the Court to the provisions of Section 52 of the Transfer of Property Act and Section 65 of the Code of Civil Procedure. 11. I do not think that this line of attack by the learned Counsel will in any way help the case of the appellant. It has been held by the Supreme Court in Samarendra Nath Sinha v. Krishna Kumar Nag ( AIR 1967 SC 1440 = 1967 I SCJ 68 = 1967 I SCWR 85 = 1967 II SCR 18), that the litigating parties are exempted from the necessity of taking any notice of a title so acquired to subsequent purchasers. 12. Section 52 of the Transfer of Property Act dealing with lis pendens runs as follows: “Transfer of property pending suit relating thereto. 12. Section 52 of the Transfer of Property Act dealing with lis pendens runs as follows: “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 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 debt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation: For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiry of any period of limitation prescribed for the execution thereof by any law for the time being in force.” 13. It has been held by the Privy Council in Gouri Dutt Maharaj v. Sheikh Sukur Mohammad (AIR 1948 P.C. 147 = 75 IA 165) that in a suit for Specific Performance of contract in respect of immovable property a right to immovable property is directly and specifically in question. “The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend upon matters of proof or the strength or weakness of the case on the one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment.” 14. The applicability of the section cannot depend upon matters of proof or the strength or weakness of the case on the one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment.” 14. Dealing with the position of transferee “ pendente lite ’ Sanjiva Row in his Treatise on Transfer of Property Act 5th Edition Volume-I page 650 in paragraph 28 has stated as follows: “A transferee pendente lite is bound by any decree or order which may ultimately be made in the lis except under the authority of the Court. He cannot be allowed to plead that he is not bound by the decree or order as he was not a party to the lis.” (Dinonath v. Shama Bibi ILR 28 Calcutta 23 = Gulzari Lal v. Madho Rao - ILR 26 Allahabad 447 FB.) and to reopen the question already decided in the suit, or to sue for the establishment of the title. Such a suit would be barred by the doctrine of res judicata, although the transferee was not a party to the suit.” In the same Volume at page 651 it is stated as follows: “The lis is deemed to continue so long as the suit or other proceeding is pending in appeal or execution, since the proceedings in appeal or execution are merely a continuation of those in the suit. ( Mod Chand v. British India Corporation (AIR 1932 Allahabad 210 = 136 IC 78) For, when a decree or order is open to appeal and is appealed against, it has to be taken that the decree or order of the Appellate Court is the decree or order in the suit or order in the proceeding.” (Govind v. Guru Churn - ILR 15 Calcutta 94) 15. It would even cover cases where proceedings were effected after dismissal of suit and before restoration. ( Krishnaji v. Anusayabai (AIR 1959 Bombay 475 = ILR 1959 Bombay 94). The purchaser need not have notice of suit. The rights of the other party will not be prejudicially affected by the transfer. 16. In the present case, admittedly the purchase was during the pendency of the suit. No doubt, the suit was dismissed by the Appellate Court and while the suit stayed dismissed, the plaintiff had purchased the properties under Exs.A-1 and A-2. The rights of the other party will not be prejudicially affected by the transfer. 16. In the present case, admittedly the purchase was during the pendency of the suit. No doubt, the suit was dismissed by the Appellate Court and while the suit stayed dismissed, the plaintiff had purchased the properties under Exs.A-1 and A-2. But, this will not in any way stand in the wayfor the doctrine of lis pendens to apply to the facts of the present case. 17. The learned Counsel then relied on the judgment of the learned single Judge of this Court, Justice Veeraswami (as he then was) in Thangavel Chettiar and another v. Kuppu Bai and another (AIR 1964 Madras 386 = 77 L.W. 185). On the basis of this judgment, the learned Counsel argued that the claim against the plaintiff should be deemed to be barred by limitation having regard to the provisions of Section 22 of the Limitation Act. In that case, the suit was for Specific Performance of agreement to sell immovable property. The transferee from the vendor was impleaded as a party after expiry of three years from the date of agreement. It was held by the learned Judge that the suit was barred by limitation. In that case, on facts the plaintiff came to know that the first defendant had sold the property to the second defendant. The second defendant was made a party. The first defendant/the vendor died pending suit. The legal representatives were not brought on record. The second defendant, the subsequent purchaser, also died. His legal representatives were not brought on record and the subsequent purchaser from the second defendant was sought to be impleaded as the third defendant in the suit. That was more than three years after the filing of the suit. The learned Judge held that Section 22 of the Limitation Act would come into play and the suit would be barred by limitation. The learned Judge distinguished the decision of the Supreme Court in Lala Durga Prasads case ( 1954 SCR 360 = AIR 1954 SC 75 = 67 L.W. 945) already referred to by observing that in that case there was no question of limitation involved. 18. In my view, this decision has no application to the facts of the present case. It is not alleged in the present proceedings that Subbiah Servai knew about the subsequent transfer. 18. In my view, this decision has no application to the facts of the present case. It is not alleged in the present proceedings that Subbiah Servai knew about the subsequent transfer. I cannot but help observing that the decision in Thangavel Chettiar v. Kuppu Bai (AIR 1964 Madras 386 = 77 L.W. 185) does not appear to lay down the correct position. There cannot be one law when the agreement-holder has knowledge of the subsequent transfer and another law if he has no knowledge of the transfer. In my view, subsequent transferees have to be parties to the sale irrespectiive of when they purchased. Section 22 of the Limitation Act will not come into play at all. 19. In Rukmini Devi v. Pawn Kumar Gupta (AIR 1979 Patna 88 DB) relied on by the learned Counsel for the appellant there was no decree against the subsequent purchaser, who was the second defendant in the suit. The application by him under Section 47 of the Code of Civil Procedure was rightly entertained. The decision will not apply to the facts of the present case. 20. The learned Counsel then relied on the decision of the then Mysore High Court in Mrs. Christine Pais v. K. Ugappa Shetty and another (AIR 1966 Mysore 299). It was held in that case that in a suit for specific performance the title passed with execution and registration oi sale deed and did not flow from the decree. 21. As against the various decisions cited by the learned Counsel for the appellant in support of his stand that the principle of res judicata will not apply in a case of Specific Performance, the learned Counsel for the respondents relied on the judgment of this Court in Lakshmi Ammal v. S. Lakshmi Animal and others (1990 11 MLJ 192) where Abdul Hadi. J, held that the rule of lis pendens is applicable also to suits for Specific Performance of contract to transfer immovable property. The learned Judge referred to the judgment of the Privy Council in Gouri Dutt Maharaj v. Sheih Sukur Mohamed, which I have already adverted to. 22. The learned Counsel for the respondents then relied on the judgment of Raju, J. in Raghavan and Bhagavathikannu Pillai and 6. others v. M. Krishnammal and 2 others (1991 I L.W. 84). The learned Judge referred to the judgment of the Privy Council in Gouri Dutt Maharaj v. Sheih Sukur Mohamed, which I have already adverted to. 22. The learned Counsel for the respondents then relied on the judgment of Raju, J. in Raghavan and Bhagavathikannu Pillai and 6. others v. M. Krishnammal and 2 others (1991 I L.W. 84). It will be useful to refer to paragraph 11 of the judgment of the learned Judge. “The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the Courts power to decide a pending dispute or frustrate its decree and that the alienees accruing any immovable property during a litigation over it are held to be bound, by an application of the said doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine was held to be to subject the parties to the litigations as well as others who seek to acquire right in immovable property, which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.” The learned Judge referred to a Division Bench judgment of the Allahabad High Court in Moti Chand v. British India Corporation (AIR 1932 A11.210) and Krishnaji v. Anusayabai already referred to in the present judgment. The learned Judge ultimately held that “the fact that the transfer is claimed to have been made during the period between the return of the papers before the Court below and its presentation in the High Court does not in any manner obviate the respondents of their liabilities under Section 52 of the Transfer of Property Act.” 23. I respectfully follow the ratio of the learned Judge and hold that the purchase by the plaintiff in the present suit was hit by the doctrine of lis pendens and he would be bound by the decree in the earlier suit filed by Subbiah Servai, whose legal representatives pursued the matter in execution. 24. No other point is urged before me. 24. No other point is urged before me. In view of the discussion above, it has to be held that the plaintiff/appellant had been rightly non-suited on the grounds of res judicata and lis pendens. The substantial question of law is answered against the appellant and the Second Appeal is dismissed. There will, however, be no order as to costs.