REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.995-996 OF 2003

Har Narain (Dead) by LRs.                 …Appellant

Versus

Mam Chand (Dead) by LRs. & Ors.            …Respondents  

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  

judgments  and  orders  dated  9.10.2001  and  9.9.2002  

passed  by  the  High  Court  of  Punjab  &  Haryana  High  

Court  at  Chandigarh  in  R.S.A.  No.1545  of  1979  

dismissing  the  Regular  Second  Appeal,  as  well  as  the  

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Review Application, filed by the appellant concurring with  

the judgments and orders of the trial Court as well as of  

the First Appellate Court on all issues raised in the case.

2. Facts  and  circumstances  giving  rise  to  these  

appeals  are  that  the  defendant/respondent  No.1-Mam  

Chand (since deceased through LRs.) (hereinafter called  

the ‘respondent’) was the owner of land admeasuring 22  

kanals  situate  within  the  Revenue  estate  of  Village  

Asraka  Majra,  District  Riwari,  Haryana.   The  said  

respondent had mortgaged the entire land in favour of  

the predecessor-in-interest of the appellant, namely, Har  

Narain (since deceased and now represented through his  

LRs.)  for  Rs.7,000/-.  The  appellant  was  also  put  in  

possession of the said land.  The respondent No.1entered  

into  an  Agreement  for  Sale  of  8  kanals  of  the  said  

property with the appellant for Rs.7500/- and he received  

Rs.200/-  as  earnest  money  in  cash  while  a  sum  of  

Rs.7000/- to be adjusted as mortgage amount.  However,  

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the  said  respondent  No.1  executed  the  sale  deed  on  

2.8.1971 in favour of respondent nos.2 to 6.   

3. Being aggrieved, the appellant filed Suit No.172 of  

1971,  for  specific  performance  against  the  respondent  

no.1 for executing the sale deed of the land in question  

on  10.8.1971 and the  trial  Court  restrained  him from  

alienating the suit property by any means.  Respondent  

no.1  moved  an  application  dated  16.8.1971  for  

vacating/modifying  the  interim  order  dated  10.8.1971  

wherein he disclosed that the entire land in dispute had  

already been alienated in favour of respondent nos.2 to 6.  

However,  the  sale  deed executed in  favour  of  the  said  

respondents was registered on 3.9.1971.  The suit was  

contested  by  the  respondents  on  various  grounds,  

however, the trial Court dismissed the suit vide judgment  

and decree dated 4.9.1973 on various grounds, inter alia,  

that  sale  deed  deemed  to  have  come  into  force  on  

2.8.1971,  as  the  registration  thereof  dated  3.9.1971  

would  relate  back to  the  date  of  execution  which had  

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been prior to institution of the suit and thus, the doctrine  

of lis pendens would not apply.  The said respondents 2  

to 6 were bona fide purchasers for consideration without  

notice. Therefore, the sale deed in their favour was to be  

protected.   

4. Being  aggrieved,  the  appellant  filed  First  Appeal  

No.508 of 1973, however, the same was dismissed by the  

First  Appellate  Court  vide  judgment  and  decree  dated  

22.3.1979.  The appellant further approached the High  

Court  by  filing  the  Regular  Second Appeal  No.1545 of  

1979  which  was  dismissed  by  the  High  Court  vide  

judgment and order dated 9.10.2001.  However, as none  

had appeared on behalf of the appellant on the said date  

before the High Court, the appellant filed the application  

to recall  the said judgment and order dated 9.10.2001  

under  Order  41 Rule  19 read with Section 151 of  the  

Code of Civil Procedure, 1908 (hereinafter called ‘CPC’).  

The  said  application  was  allowed  vide  order  dated  

9.9.2002 and the matter was heard afresh on merit on  

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the same day.  The Court agreed with the proposition laid  

down by the courts below that principles of lis pendens  

would not apply in the facts and circumstances of this  

case as the sale deed has been executed before the filing  

of  the  suit  though,  the  same  was  got  registered  

subsequent to the institution of the suit.  Hence, these  

appeals.   

5. Shri  Dhruv  Mehta,  learned  Senior  counsel  

appearing for the appellant has submitted that the courts  

below reached the conclusion that doctrine of lis pendens  

was not applicable in the facts of the case merely on the  

ground  that  the  sale  deed  has  been  executed  by  the  

respondent No.1 in favour of respondent nos.2 to 6 prior  

to institution of the suit and the registration of the sale  

deed would relate back to the date of execution by virtue  

of the application of the provisions of Section 47 of the  

Registration Act, 1908 (herein after called the ‘Act 1908’)  

without taking note of the fact that the execution of  a  

sale deed of immovable property of more than Rs.100/-  

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in value is  not capable  to transfer  the  title  unless  the  

deed is  registered as required under Section 52 of  the  

Transfer of Property Act, 1882 (hereinafter called the ‘Act,  

1882)  and  Section  17  of  the  ‘Act  1908.   In  case,  the  

appellant  had been in  the  possession  of  the  suit  land  

being the mortgagee of the entire property since long, the  

question of protection under Section 19(b) of the Specific  

Relief Act, 1963 (hereinafter called the ‘Act 1963’) to the  

respondent  nos.2  to  6  that  they  were  bonafide  

purchasers  for  value  and  paid  money  in  good  faith  

without  notice  of  the  earlier  contract,  becomes  

meaningless for the reason that they had a notice that  

the land was in possession of the appellant and this fact  

had also been mentioned by the respondent  No.1 in the  

sale  deed  dated  2.8.1971  in  their  favour.   Thus,  the  

appeals deserve to be allowed.

6. On the contrary, Shri R.K. Kapoor, learned counsel  

appearing for the respondents has vehemently opposed  

the  appeals  contending  that  there  are  concurrent  

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findings of fact by three courts and this Court being the  

fourth court should not re-appreciate the factual matrix  

of the case and interfere in the appeals.  The sale deed  

might  have  been  registered  at  a  later  stage  but  the  

document  becomes  effective  from  the  date  of  its  

execution.  The findings so recorded by the courts below  

do not require any interference.  The appeals lack merit  

and are liable to be dismissed.

7. We have considered the rival submissions made by  

learned counsel for the parties and perused the records.  

       Admitted  facts  remain  that  the  entire  land  

admeasuring  22  kanals  had  been  mortgaged  by  Mam  

Chand, respondent No.1 in favour of appellant vide deed  

dated  30.6.1970  and  the  appellant  had  been  put  in  

possession thereof.   The possession of the land is with  

the  appellant  since  1970.   An  agreement  to  sell  was  

entered into between the appellant and respondent No.1  

on 25.5.1971.  Sale deed was executed by the respondent  

No.1 in favour of respondent nos.2 to 6 on 2.8.1971 and  

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the said sale deed was got registered on 3.9.1971.  The  

suit had been filed on 10.8.1971 i.e. subsequent to the  

date  of  execution  of  the  sale  deed  and  before  the  

registration  thereof  on  3.9.1971.  The  trial  court  also  

passed an ex-parte  order  dated  10.8.1971  restraining  

the  respondent  No.1  from  alienating  the  suit  land,  

however it  was subsequently modified vide order dated  

31.8.1971.  

The basic questions arise as to whether in  the fact-

situation  of  this  case,  the  sale  deed  executed  by  the  

respondent No.1 in favour of respondent nos.2 to 6 could  

be subject to the doctrine of lis pendens and in case the  

appellant had been in possession of the suit land being  

mortgagee since 1970, the respondent nos.2 to 6 can be  

held to be vendees without notice of an agreement to sell  

in favour of the appellant by the respondent no.1.

8. All  the  courts  below  have  proceeded  on  the  

presumption  that  as  the  registration  of  a  document  

relates back to the date of execution and in the instant  

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case  though  the  registration  was  subsequent  to  

institution  of  the  suit,  it  would  relate  back  to  the  

execution  of  the  deed  and  the  doctrine  of  lis  pendens  

would not apply.  Further, without considering the fact  

that the appellant had been in possession of the suit land  

since 1970, though, this fact had been mentioned in the  

sale  deed  in  favour  of  respondent  nos.2  to  6  by  the  

respondent  No.1 whether it could be held that they were  

not put to notice of the fact that the appellant had some  

interest  in  the  property  and  whether  in  such  fact-

situation the respondent nos.2 to 6 may be entitled for  

benefit of the provisions of Section 19 of the Act, 1963.    

9. Section 54 of the Act,  1882, mandatorily  requires  

that the sale of any immovable property of the value of  

hundred  rupees  and  upward  can  be  made  only  by  a  

registered  instrument.    Section  47  of  the  Act,  1908,  

provides  that  registration  of  the  document  shall  relate  

back to the date of the execution of the document. Thus,  

the  aforesaid  two provisions  make it  crystal  clear  that  

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sale  deed  in  question  requires  registration.  Even  if  

registration  had been done  subsequent  to  the  filing  of  

Suit, it related back to the date of execution of the sale  

deed, which was prior to institution of the Suit.  A similar  

issue  though  in  a  case  of  right  of  pre-emption  was  

considered by the  Constitution Bench of  this  Court  in  

Ram Saran Lall & Ors. v. Mst. Domini Kuer & Ors.,  

AIR 1961  SC 1747,  by  the  majority  of  3:2,  the  Court  

came to the conclusion that as the mere execution of the  

sale  deed  could  not  make  the  same  effective  and  

registration  thereof  was  necessary,  it  was  of  no  

consequence unless the registration was made.  Thus, in  

spite of the fact that the Act, 1908, could relate back to  

the date of execution in view of provisions of Section 47  

of  the  Act,  1908,  the  sale  could not  be given effect  to  

prior  to  registration.  However,  as  the  sale  was  not  

complete  until  the registration of  instrument  of  sale  is  

complete,  it  was not completed prior to the date of its  

registration.  The court held:

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  “Section 47 of the Registration Act does not,  however,  say when sale would be deemed to   be complete. It  only permits a document when  registered, to operate from a certain date which  may  be  earlier  than  the  date  when  it  was   registered. The object of this section is to decide  which of two or more registered instruments in  respect of the same property is to have effect.  The  section  applies  to  a  document  only  after it has been registered. It has nothing  to  do  with  the  completion  of  the  registration  and therefore,  nothing to  do  with  the  completion  of  a  sale  when  the  instrument is one of sale. A sale which is  admittedly  not  completed  until  the  registration  of  the  instrument  of  sale  is  completed,  cannot  be  said  to  have  been  completed  earlier  because  by  virtue  of  Section 47 the instrument by which it  is  effected, after  it  has  been  registered,   commences  to  operate  from  an  earlier  date.   Therefore, we do not think that the sale in this   case can be said, in view of Section 47 to have  been  completed  on  January  31,  1946.”  (Emphasis added).

10. This  view  has  subsequently  been  followed  and  

approved by this Court as is evident from the judgments  

in  Hiralal Agrawal Etc. v. Rampadarath Singh & Ors.  

Etc.,  AIR 1969 SC 244;  S.K. Mohammad Rafiq (Dead)  

by LRs. V. Khalilul Rehmad & Anr. Etc., AIR 1972 SC  

2162;  Thakur Kishan Singh  (Dead) v. Arvind Kumar,  

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AIR 1995 SC 73; and  Chandrika Singh  (Dead) by LRs.  

V.  Arvind  Kumar  Singh  (Dead) by  LRs.  &  Ors.,  AIR  

2006 SCC 2199.  

11. However, all these cases are related to right to pre-

emption though the legal issue involved therein remained  

the same.  In view of the above, we are of the considered  

opinion that in spite of the fact that the registration of  

the sale deed would relate back to the date of execution,  

the  sale  can  not  be  termed  as  complete  until  its  

registration and it becomes effective only once it stands  

registered.  Thus, the fiction created by Section 47 of the  

Act,  1908,  does  not  come  into  play  before  the  actual  

registration of the document takes place.  

12. In Guruswamy Nadar v. P. Lakshmi Ammal (Dead)  

Through LRs. & Ors., (2008) 5 SCC 796, this Court dealt  

with a similar issue and considered the effect of doctrine  

of lis pendens and the provisions of Section 19(b) of the  

Act,  1963.   Facts  of  the  said  case  had  been  that  an  

agreement  to  sell  stood  executed  between  the  first  

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purchaser and owner of the land on 4th July, 1974 for a  

sum of Rs.30,000/- and a sum of Rs.5,000/- was given  

as advance. The remaining amount was to be paid before  

31st July, 1974.  As the said amount was not paid, the  

owner  again  sold  the  suit  property  to  another  party  

(appellant)  on 5th May,  1975 for  a sum of  Rs.45,000/-  

and possession of the suit property was handed over to  

the appellant therein.  Thus, the first purchaser filed the  

suit  for  enforcement of  the specific  performance of  the  

contract.  The trial court dismissed the Suit holding that  

the  agreement  was genuine and appellant  was a  bona  

fide purchaser for value paid in good faith, without notice  

of the earlier agreement, therefore, no decree for specific  

performance  could  be  passed in  favour  of  the  plaintiff  

therein.  The  First  Appellate Court  reversed the said  

judgment and decree. The Second Appeal was  dismissed  

by the High Court. This Court considered the provisions  

of Section 52 of the Act, 1882, and Section 19 (b) of the  

Act,  1963,  and  held  that as the subsequent sale  was  

subsequent to the filing of the Suit, Section 19(b) of the  

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Act 1963 read with Section 52 of the Act, 1882, could not  

grant any benefit to the subsequent purchaser and the  

subsequent  sale  was  subject  to  the  doctrine  of  lis  

pendens. Second sale could not have the overriding effect  

on the first sale.  The Court held as under:

“So far as the present case is concerned, it   is  apparent  that  the  appellant  who  is  a  subsequent  purchaser  of  the  same  property, has purchased in good faith but  the principle of lis pendens will  certainly  be  applicable  to  the  present  case   notwithstanding  the  fact  that  under  Section 19(b) of the Specific Relief Act his  right could be protected.”    

13. In view of the above, it is evident that doctrine of lis  

pendens  would  apply  in  the  present  case  as  the  

registration of the sale deed was subsequent to filing of  

the Suit and subsequent purchasers i.e. respondent Nos.  

2 to 6 cannot claim benefit of the provisions of Section  

19(b) of the Act, 1963.  

14. So  far  as  the  issue  of   notice  of  first  sale  to  

respondent  Nos.  2  to  6  is  concerned,  it  has  to  be  

examined bearing in mind that the sale deed in favour of  

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the respondent Nos. 2 to 6 clearly disclosed that the Suit  

land had been mortgaged to the appellant and it was in  

his   possession  since  1970.   In  R.K.  Mohammed  

Ubaidullah & Ors.  v. Hajee C. Abdul Wahab (Dead) by  

LRs. & Ors., AIR 2001 SC 1658, this Court considered a  

similar  case  wherein  the  question  had  arisen  as  to  

whether the vendees of subsequent sale were bona fide  

purchasers  of  the suit  property in good faith for  value  

without  notice of  original  contract  and  whether  they  

were not required to make any inquiry as to the equitable  

or  further  interest  of  the  other  party  at  the  time  of  

execution of sale in their favour.  In view of the fact that  

they had been aware that the land was in possession of  

first purchaser, the Court took note of the definition of  

“notice” as provided in Section 3 of the Act, 1882, and  

particularly Explanation II thereof for deciding the case.  

The said Explanation reads:  

“Any person acquiring  any immovable property   or any share or interest in any such  property  shall be deemed to have notice of title, if any, of   any person who is for the time being in actual   possession thereof.”

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This Court came to the conclusion that in view of Section  

19(b)  of  the  Act,  1963   and  definition  of  “notice”  

contained under Section 3 of the Act, 1882, it could not  

be held that the subsequent purchasers were bona fide  

purchasers in good faith for value without notice of the  

original contract and they were required to make inquiry  

as  to  the  nature  of  the  possession  or  title  or  further  

interest, if any, of the other party over the suit property  

at  the  time  when  they  entered  into  sale  transaction,  

notwithstanding, that they were already aware that the  

other party was in possession of the suit property as the  

tenant.  Thus, what is material is the inquiry at the time  

when subsequent sale transaction was entered into.  

15. The  instant  case  is  squarely  covered  by  the  

aforesaid  judgment,  so  far  as  this  issue  is  concerned.  

The  subsequent  purchaser  has  to  be  aware  before  he  

purchases  the  suit  property.   Thus,  we  are  of  the  

considered opinion that respondent Nos. 2 to 6 could not  

be held to be  bona fide purchasers for value paid in good  

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faith without notice of the original contract and the sale  

in their favour was subject to the doctrine of lis pendens.  

Legal maxim, pendente lite, nihil innovetur; provides that  

as  to  the  rights  of  the  parties  to  the  litigation,  “the  

conveyance is treated as if it never had any existence; and  

it does not vary them.”

16. It  has half-heartedly been argued by Shri Kapoor,  

learned  counsel  for  the  respondents  that  respondent  

Nos.  2  to  6  are  the  first  purchasers  as  there  was  an  

agreement to sell executed in their favour on 19.2.1971  

and he had taken us through the judgments  of the trial  

court as well as the First Appellate Court where passing  

remarks have been made by the courts in respect of the  

same on the basis of the written statement filed by the  

respondent No.1, though this point has not been agitated  

by the respondent Nos. 2 to 6, nor any issue had been  

framed in this respect either by the trial court or as an  

additional issue by the First Appellate Court. In view of  

the  fact  that  the  respondent  No.1  has  been  executing  

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documents  in  respect  of  the  same  land  in  favour  of  

different  persons  as  is  evident  from  the  record,  the  

contention  raised  by  Shri  Kapoor  is  not  worth  

consideration.  

17. In  view  of  the  above,  we  reach  the  inescapable  

conclusion that the sale executed by respondent No.1 in  

favour of respondent Nos. 2 to 6 on 2.8.1971 could not  

be  termed  as  a  complete  sale  until  the  document  got  

registered  on  3.9.1971.  In  view  of  the  provisions  of  

Section  47  of  the  Act,  1908  the  effect  of  registration  

would be that registration would relate back to the date  

of  execution but  it  does  not  mean that  sale  would  be  

complete  in  favour  of  respondent  Nos.  2  to  6  prior  to  

3.9.1971 i.e. the date of registration of the sale deed.  In  

view of  the  above,  as sale  stood completed  during  the  

pendency of the suit, doctrine of lis pendens is applicable  

in the facts and circumstances of the case. The courts  

below  failed  to  appreciate  that  the  fiction  created  by  

Section 47 of  the  Act  1908,  itself  is  a  consequence  of  

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registration of the sale deed.  More so, as the appellant  

had  been  in  possession  of  the  suit  land  being  a  

mortgagee  since  1970  and  this  fact  had  also  been  

mentioned by the respondent No.1 in the sale deed dated  

2.8.1971  in  favour  of  respondent  Nos.  2  to  6,  the  

question  of  respondent  Nos.  2  to  6  being  bonafide  

purchasers  for  value  and  paid  money  in  good  faith  

without notice does not arise, simply for the reason that  

the said respondents were fully aware that the suit land  

was  in  possession  of  the  appellant.  Thus,  the  

respondents  No.2  to  6  cannot  take  the  benefit  of  the  

provisions of Section 19(b) of the Act, 1963.  

18. In view of the above, the appeals succeed and are  

allowed. The judgment and decree of the courts below are  

set  aside.  The respondents  are  directed to execute the  

sale deed in favour of the appellant to the extent of land,  

for  which the agreement to sell  was executed within a  

period of three months from today. However, in order to  

meet  the  ends  of  justice  it  is  necessary  to  hold  that  

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respondent Nos.  2 to 6 shall  be entitled to receive the  

amount  paid  by  them  to  the  respondent  No.1  as  

consideration along with 10% interest per annum on the  

same.  The respondent No.1 shall be entitled to redeem  

the land over and above the  extent  of  land in  respect of  

which the agreement to sell had been  executed, if any, in  

accordance with law.  There shall be no order as to costs.  

…………………………….J. (P. SATHASIVAM)

 ……………………..…….J.

New Delhi, (Dr. B.S. CHAUHAN) October 8,  2010

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