V.T.VIJAYAN Vs. U.KUTTAPPAN NAIR

JUDGEMENT

(1.) Whether an agreement for sale executed by a party to the lis, during the pendency of the suit is hit by the doctrine of lis pendens or not? This is the question that has been referred to this Full Bench for an authoritative pronouncement by the Reference Order. According to the Division Bench, which passed the reference order, section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'Act') is categoric, that the property cannot be transferred or 'otherwise dealt with' by any party to the suit, so as to affect the rights of the other. This is the view expressed in Kubra Bibi v. Khudaija Bibi [AIR 1917 Oudh 193]. In this decision, the court held as follows:

(2.) But, a Division Bench of this Court in Wellingdon B. and others v. D.Shyama Prasad and others [2014 (3) KHC 560], took a different view and held as follows:

(3.) Further, the Division Bench doubted the aforesaid view, by observing that it is difficult to agree with the exposition of law by the Divison Bench on the rigour of Section 52 of the Act, which has a vital bearing on the enforceability of an agreement, executed during the pendency of the original suit. Thus, the legality and correctness of the aforesaid view expressed by the Division Bench of this court in Wellingdon B. and others case (supra) have been doubted in this reference.