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Report No. 157

3.19. Bombay amendment.-

Presumably inspired by the reforms effected in Western countries, the (erstwhile) Province of Bombay had amended section as far back as 1939, (being Bombay Act 14 of 1939). The Bombay amendment is to the following effect:

"(2) Section 52 shall be renumbered as sub-section (1) of that section, and-

(i) in sub-section (1) so renumbered, after the word "question", the words and figures "if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, and after the word "property", where it occurs for the second time, the words "after the notice is so registered," shall be inserted; and

(ii)after the said sub-section (1) so renumbered the following shall be inserted, namely:-

"(2) Every notice of pendency of a suit or proceeding referred to in sub-section (1) shall contain the following particulars, namely:-

(a) the name and address of the owner of immoveable property or other person whose right to the immoveable property is in question;

(b) the description of the immoveable property, the right to which is in question;

(c) the Court in which the suit or proceeding is pending;

(d) the nature and title of the suit or proceeding;

(e) the date on which the suit or proceeding was instituted."

[(vide Bombay Act 14 of 1939, sections 2 & 3 (w.e.f. 15-6-1939)]."

The Bombay amendment contains a salutary principle and serves to eliminate any mischief on the part of dishonest and unscrupulous parties to the suit, besides protecting bona fide purchasers. The amendment contemplates1 that for the rule in section 52 to operate, it is necessary that a notice of the pendency of such suit or proceeding is registered under the Indian Registration Act, 1908 with the necessary particulars.

Normally, it is the party who files the suit (i.e. the plaintiff) who would be interested in registering the pendency of such a suit or proceeding. A normal diligent purchaser is expected to obtain what is called a 'non-encumbrance certificate' from the registration office with respect to property being purchased by him. If the notice of the suit or proceeding is so registered under the Registration Act, the registration office will naturally include the said information in the certificate issued by it, which would put the purchaser on notice. He cannot thereafter complain if he suffers any loss by operation of the rule contained in section 52.

We may mention that by virtue of the Bombay Amendment Act XIV of 1939, rule of "lis pendens" applies only when a notice of pendency of the suit in which any right to involve property is directly and specifically in question, is registered under section 18 of the Registration Act vide Anand Nivas (P) Ltd. v. Anandji.

The Commission, in its earlier report (70th Report, para. 47.11) had occasion to consider the issue of the necessity of providing for registration of notice of a suit on the lines of the Bombay Amendment but was not inclined to recommend such an amendment because it was thought that it may involve an amendment of the Registration Act; secondly, such an amendment in that Act was not favoured by the Law Commission in its report on that Act and besides the Commission was not certain whether the amended procedure would be appropriate for all the territories to which the Transfer of Property Act extends.

The Commission has given a serious thought to the problem and is of the considered view that having regard to the escalating prices of land there is an inherent tendency of committing fraud, upon a bona fide purchaser, whose interest will be jeopardised to a greater extent in the existing scenario. He becomes a victim to mischief by unscrupulous parties to the suit (in which the property being sold by them is directly and specifically in question), apart from suffering from grave loss and deprivation. With a view to check such iniquitous situations, it is felt that it is essential to bring in the amendment to remedy the wrong.

It may, however, be noted that upon the incorporation of the requirement of the registration of a notice of the pendency of suit or proceeding on the lines of the amendment made to this section by the Bombay Act No. 4 of 1939, one more ingredient, viz., registration of notice of the pendency of suit or proceeding under the Indian Registration Act, would stand incorporated in the section. It is quite natural that if any essential ingredient of any provision of law is missing in a particular situation, the applicability of the section would not be attracted.

In other words, where notice of the pendency of suit or proceeding is not got registered by any party, section 52 would not be attracted and obviously in the absence of such registration, the parties will be legally at liberty to dispose of the property in dispute, which is at present not legally permissible under the existing section 52. On account of certain facts and circumstances beyond the control of any party, there may be some delay in getting the notice of the pendency of suit or proceeding registered. It really gives rise to a vital question as to whether any party to the suit or proceeding should have legal sanction to dispose of the property in dispute during such an interregnum.

Such a situation may arise in a case where the plaintiff is in the need of immediate relief in the nature of temporary injunction or interim orders, etc. and he may not have any time to simultaneously get the notice of the pendency of suit or proceeding registered under the Indian Registration Act. This grey area requires to be plugged, preferably by allowing some reasonable time to the party for having the notice of the pendency of suit or proceeding registered. The other course which may be adopted is to provide for non-applicability of the requirement of registration of the notice of suit or proceeding for reasons beyond the control of any party to the suit or proceeding.

In such an event, if any party is not in a position to get the notice of the pendency of a suit or proceeding, so registered for reasons beyond its control, mere non-registration of such notice shall not give right to the other party to transfer or otherwise deal with the property so as to affect the rights of any other party to the suit or proceeding under any decree or order which may be made therein.

As regards the option for making a provision dispensing with the requirement of the registration of notice of suit or proceeding under the Indian Registration Act for reasons beyond one's control, it may be stated that making of such a provision may at times give rise to disputed questions of fact as to whether the reasons for the purpose which may be given by any party to the suit or proceeding can be said to be the reasons beyond its control.

Therefore, we are of the view that the first option mentioned above regarding prescription of a reasonable time limit for the registration of the notice of a suit or proceeding would appear to be more appropriate. However, while prescribing any reasonable time limit, it has to be ensured that no party should get any right to transfer or otherwise deal with the property in dispute during the pendency of the suit or proceeding till the expiration of the prescribed time limit. Having regard to different geographical conditions of our country, it appears to us that the period of three months may be sufficient to enable the parties to the suit or proceeding to get the notice of suit or proceeding registered under the Indian Registration Act.



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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