SHANKAR PRASAD Vs. MUNESHWARI

JUDGEMENT

(1.) Plaintiff is the appellant. He brought a suit for specific performance of a contract to sell three rooms of a house belonging to defendant No. 1 for Rs. 4,500/-. This agreement was executed on the 15th of June, 1959 by defendant No. 1 who took from the plaintiff Rs. 500/- towards consideration. Without executing the deed of sale in pursuance of that agreement he (defendant No. 1) sold two of those rooms to defendant No. 2 for Rs. 4,800/-. The deed of sale in that respect was executed by defendant No. 1 in favour of defendant No. 2 on the 10th of July, 1959 and the document was registered. The present suit was instituted on the 8th of August, 1959. The trial court held that defendant No. 2 was bona fide purchaser of value without notice of any agreement between the plaintiff and the defendant No. 1 in respect of the property which he purchased. It also held that the agreement on which the plaintiff relied and sued for specific performance was not genuine. When an appeal was brought by the plaintiff to the court below, the finding about the lack of genuineness of the said agreement was reversed; but the plaintiff's suit for specific performance was equally refused by the lower appellate court on the ground that the defendant No. 2 was a bone fide purchaser for value and without notice of the agreement between the plaintiff and defendant No. 1 for sale of the property concerned. The appellate court, however, modified the trial court's decree to the extent that the plaintif was to get Rs. 500/- from defendant No. 1. Against the dismissal of the suit for specific performance of the contract the plaintiff has come in this second appeal.

(2.) Learned counsel for the appellant contended that the deed of sale executed on the 10th of July, 1959 by the defendant No. 1 in favour of defendant No. 2 in respect of a part of the property which was the subject matter of the agreement to sell to the plaintiff, having not been registered before the institution of the suit, cannot present any difficulty to the plaintiff getting a decree for specific performance of the contract on the finding that that agreement was genuine. That appellate finding, however, was challenged by the respondents (defendant No. 1) who has filed a cross-objection in this appeal. I shall deal with that later. Assuming that the appellate court's finding about the genuineness of the sale deed (Ext. 5) is correct, whether that would help the plaintiff-appellant in any way to get over the other finding that the subsequent purchaser, defendant No. 2 was a bona fide purchaser for value and without notice of the previous agreement. Learned counsel's argument is that the deed of sale (Ext. Ka) taken by defendant No. 2 from defendant No. 1 will be hit by the doctrine of lis pendens because the transfer of property under that document had not been complete before the institution of the present suit. Ext. Ka was executed on the 10th of July, 1959 and was presented that very day in the Registration Office for registration and the execution of the document was admitted before the Registrar that day also. All the relevant endorsements had been given by the Registrar with his signature on the back of the pages of that document. There is, however, an endorsement on the back of the last page indicating that the copies of that document in the register book in the Registration Office had been made on the 24th of October, 1959. This endorsement, according to learned counsel, is in accordance with the provisions of Section 60 of the Indian Registration Act. He contended that till that date the registration was not complete and referred to Section 61 (2) of that Act. This part of the argument is quite valid but I am afraid that would not be of any assistance to the plaintiff. Under Section 47 of the Indian Registration Act a registered document becomes operative at the time from which it would have commenced to operate if no registration thereof was required or made and not at the time of its registration. As far as Ext. Ka is concerned, the time of its registration or in other words, the completion of registration of the document, was not till the 24th of October, 1959, but once it is registered, the vendee, defendant No. 2 obtained a title under that document as operative from the date of its execution, which was 10th of July, 1959. Section 19 of the Specific Relief Act provides:--

(3.) Learned counsel referred to the case of Tilakdhari Singh v. Gour Narain AIR 1921 Pat 150 to support his contention about lis pendens against the defendant No. 2 on the facts of that case I do not see that there was at all either a discussion or adjudication on the question of lis pendens. There, a mortgage decree had been obtained on the 8th of March, 1907 in a suit instituted on the 7th of November, 1906 and the delivery of possession of the mortgaged property was taken on the 10th of September, 1910. Since the decree-holder who had taken delivery of possession did not get peaceful possession of the said property, he instituted another suit on the 3rd of March 1913 for recovery of possession of that property and mesne profits, against the defendant in whose favour a deed of sale had been executed on the 11th of August, 1906 (the registration of that sale deed was completed on the 22nd November, 1906). That suit was decreed and when the matter came in second appeal to the High Court at the instance of the judgment-debtor it was urged that the plaintiff was not entitled to possession on the date of the mortgage suit, i e., 7th of November, 1906, as ownership of the property involved had been transferred to the defendant appellant on execution of a sale deed in his favour in respect of that property on the llth of August, 1906. That was overruled by this court on the ground that the deed of sale in favour of the defendant-appellant had not been registered by the date of the institution of the earlier mortgage suit. There was, therefore, no point of the doctrine of lis pendens in that case.