Section 52 of the Transfer of Property Act, 1882
In support of such contention, Mr. Roy relied on the decision of the Supreme court in the case of
Har Narain vs. Mam Chand reported in (2010) 13 SCC 128.
He further contended that since the transfer of a portion of the said properties in favour of the appellant nos. 3 and 4 and the predecessor of the appellant nos. 2(a) to 2(d), by the appellant no. 1 was during pendency of the suit filed by the respondent, sub-Section (2) of Section 21 of the Limitation Ac, 1963 comes into play and the suit against the appellant nos. 3 and 4 and the said predecessor of the appellant nos. 2(a) to 2(d) was not barred by the laws of limitation. He further contended that in any event, even if it is accepted for the sake of argument that the suit filed against the said subsequent purchasers is barred by limitation the entire suit shall not fail and it is only the claim of the respondent against the portion of the suit properties against the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 shall not be maintainable.
Mr Roy next submitted that in the present case the appellant no. 1 did not assail the findings of the learned first appellate Court, in the first round, in the said judgment dated February 05, 1994 passed in Title Appeal no. 138 of 1989 that respondent, was ready and willing to perform the said agreement and, therefore, in view of sub-Section (2) of
Section 105 of the Code of Civil Procedure, 1908
(hereinafter called as “the code”), in the present second appeal the appellants cannot assail the findings of the learned courts below that the respondent was ready and willing to perform the said agreement for sale. In support of such contention, be relied on the decisions of the Supreme Court in the cases of
Nein Singh Vs. Knowarjee & ors reported in (1970)1 SCC 732
Sitaram Goel Vs. Sukhnaudi Deyal reported in AIR 1972 SC 1612
He contended that the decision of the learned first appellate Court in the impugned judgment refusing to entertain the challenge of the appellants with regard to the finding of the learned trial Judge in the judgement dated January 22, 2004 that the respondent was ready and willing to perform this said agreement for sale is not vitiated by any error of law.
In his reply, Mr. Ghosh submitted on behalf of the appellants that it is well settled principle of law that in view of
Section 47 of the Indian Registration Act, 1908
a sale deed, after completion of registration relates back to the date of its execution. According to him, when the deed of conveyance was executed by the appellant no. 1 transferring the land at Plot No. 130 of the said properties to the subsequent purchasers on July 5, 1988 and the same was registered on September 22, 1988 though, after filing of the said suit for specific performance by the respondent, the doctrine of lis pendens shall not apply and, therefore, the submission made on behalf of the respondent that impleadment of the subsequent purchasers as the defendants in the suit shall not be barred by limitation in view of sub-Section (2) of Section 21 of the Limitation Act has no merit. In support of such contention, Mr. Ghosh cited a Division Bench decision of the Patna High Court in the case of
Smt. Sudama Devi and Ors. vs. Rajendra Singh and Ors. reported in AIR 1973 Patna 199
Mr. Ghosh urged that as held by the Supreme Court in the case of Ram Awadh vs. Achhaibar Dubey (supra) it is not only the transferor defendant, but also the subsequent purchaser of the property as the defendant in a suit for specific performance can contend and establish that the plaintiff has not fulfilled the mandatory requirement of Section 16(c) of the Specific Relief Act with regard to his readiness and willingness to perform the agreement for sale. According to him, in the present case, the appellant nos. 2(a) to 2(d) and the appellant nos. 3 and 4 not being parties to Title Appeal No. 138 of 1989, can contend and establish in this second appeal that the respondent was not ready and willing to perform his part of the said agreement and that the finding of the learned Courts below, in the previous judgment of the learned trial Court dated November 15, 1989 as well as the judgment of the learned first appellate Court in the said Title Appeal No 138 of 1989 and the judgement and decree passed by dated January 22, 2004 the learned trial court after remand are all, on the grounds already urged by him vitiated by perversity, After conclusion of the hearing of the appeal while the decision of the appeal was awaiting, I came across a decision of the Three Judge Bench of the Supreme Court in the case of
Hamda Ammal vs. Avadiappa Pathar reported in (1991)1 SCC 715
In the said decision of the Supreme Court held that in case of sale of an immovable property of the value of more than Rs. 100/-, in view of Section 47 of the Registration Act a deed of conveyance of sale after its registration relates back to the date of its execution and an order of attachment passed in a suit filed subsequent to the execution of the conveyance but before the date of registration of the conveyance shall not affect the transfer of the property. Thus, I directed the matter to appear in my list on June 21, 2016 under the heading “To Be Mentioned” for drawing the attention of the learned counsel appearing for the respective parties to the said decision of the Supreme Court in the case of Hamda Ammal vs. Avadiappa Pathar (supra). On June 21, 2016 when the appeal appeared under the heading “To be Mentioned,” the decision of the Supreme Court in the case of Hamda Ammal (supra) was brought to the notice of Mr. Roy and Mr. Ghosh, learned counsel appearing for the respective parties and both of them agreed that the said decision of the Three Judge Bench of the Supreme Court was not considered Two Judge Bench of the Supreme Court while deciding the case of Har Narain Vs. Mam Chand (supra). Even in Division Bench decision of the Patna High Court in the case Sudama Devi (supra), cited by Mr. Ghosh, Untwalia, J. (as His Lordship then was) also held that when a sale deed is executed prior to, but the same was registered during the pendency of the suit, in view of Section 47 of the Registration Act, 1908 merely because it is registered subsequent to the filing of suit, the transfer cannot be said to be hit by the principle of lis pendens under Section 52 of the Transfer of Property Act. I am in respectful agreement with the said decision.
It is well settled law that if there are two Supreme Court decisions of varying import on the same point of law and when the latter judgement did not notice the previous view of a larger Bench, a Division Bench or a Single Judge of the High Court should follow the previous judgment. Authorities for this view can be found in the decisions of the Supreme Court in the case of