Report No. 70
47.11. Notice of suit-Registration of.-
An amendment made by the erstwhile State of Bombay1 has provided for the registration of notices of suit with reference to the Registration Act and has consequentially amended section 52 of the Transfer of Property Act so as to limit its operation to cases where notice of the pendency of the suit or proceeding is registered under the Registration Act as amended in that State. We have considered the question whether such an amendment should be extended to the rest of India, but are not inclined to do so.
Apart from the fact that it may involve an amendment of the Registration Act, and apart from the fact that such an amendment in that Act was not favoured by the Law Commission in its Report on that Act2, we are not certain whether the amended procedure would be appropriate for all the territories to which the Transfer of Property Act extends.
1. Bombay Act (57 of 1959).
2. Law Commission's 34th Report on the Registration Act.
47.12. Meaning of Court.-
Questions arise as to whether a particular authority is a "court" or not for the purpose of the section. Generally, a wide view is taken. We need not quote the case law.
47.13. Competence of the Court.-
An important ingredient which is usually read into the main paragraph of section 52 is not mentioned expressly in the section, namely, that the Court before which the proceeding is pending must be a court of competent jurisdiction. The words "having authority" which appear in the main paragraph are intended mainly to emphasise the fact that the Court must be an Indian Court.
But it is not meant to indicate that, as amongst Indian Courts inter se, the court must be a competent court having regard to all the law that governs the jurisdiction of courts dealing with civil allied proceedings. This further requirement should find a place in the main paragraph. The idea is indirectly brought out by its mention in the definition of pendency of a suit as given in the Explanation. But it is important enough to deserve mention in the main section.
47.14. That the court must be competent in an aspect which may become material either where the suit was going on in a court which has no jurisdiction so that the plaint is ultimately rejected or the suit dismissed, or where the plaint was returned by the incompetent court for presentation to the competent court. In fact, the words "court of competent jurisdiction" in the Explanation which was inserted in 1929 make it clear that the court must be competent. The only point which is now sought to be emphasised is that this important requirement may usefully find a place in the main paragraph of the section.
Where the Court has no jurisdiction to try the suit, a transfer pending such suit cannot operate as lis pendens, and cannot affect any decrees or orders in such suit.1 In an early Calcutta case2, it was held that a suit filed on the equity side of the Supreme Court of Calcutta did not operate as lis pendens so as to affect a transfer of immovable property in the mofussil, inasmuch as the Supreme Court has no jurisdiction over property in the mofussil.
The present High Courts have, under their Letters Patents, power to try suits relating to land partly within their jurisdiction and partly without it, provided the leave of the Court is obtained for doing so. When the High Court so acquires jurisdiction to determine the suit, the suit will operate as lis pendens.3
47.15. Recommendation.-
It may be desirable to bring out the above, aspect in the main paragraph and we recommend accordingly.
1. Devassyn v. Thommani, AIR 1953 Tray-Co 573 (574).
2. (1869) 11 Suth WR 554 (555) (DB).
3. Kiernanda v. Beni Madhab, AIR 1931 Cal 763 (767).
47.16. Scope as to movable property.-
Because of the setting in which the section appears, section 52 does not apply to movable property. Further, because the Act does not extend to certain territories, the section does not apply to those territories. Nevertheless, the principle of the section must also extend to the territories to which, strictly speaking, the Act does not apply. The same reasoning applies to execution sales. Although "transfer" and "dealing" are not expressions appropriate for execution sales, yet it is well established that the principle applies to execution sales as well1.
1. Jayaram v. Ayyawam, AIR 1973 SC 569 (578).
47.17. Meaning of "otherwise dealt with".-
The section is not confined to "transfers". The words "otherwise dealt with" will include the several other transactions which we need not enumerate.
47.18. Recommendations for amendment.-
As a result of the above discussion, we recommend two amendments in the section
(i) insertion of the requirement of competence of the Court in the first paragraph;
(ii) amplification as regards a right1-particularly, a charge-created by a decree, though such right or charge was not prayed for in the plaint. Of course, in such a case the lis commences from the date of the decree and not from the date of plaint. But the expression "right is in question" may require to be amplified.
1. Para. 47.10, supra.
47.19. Illustrative situations.-
In elucidations of the second proposition, it may be stated that a suit or proceeding, in which, at its inception, no question as to right to any property is directly or specifically raised, may, at a subsequent are thereof, become a suit or proceeding in which such question is involved. Thus, a suit for maintenance in which no charge is asked for against any property is not, at its inception, one in which any right to immovable property is in question. But, if the decree declares a charge on any particular property, the litigation thereafter becomes one in which such right is in question and a subsequent transfer of the property will be affected by lis pendens1.
Similarly, where in a suit for mesne profits, the defendant furnishes security of specific immovable property for any amount that may be decreed in the suit the litigation becomes, from the date the security is given, one in which a right to immovable property is in question. A transfer, therefore, of such property after the date on which it is given as security, will be affected by lis pendens2. In Bazayat Hossein v. Dooli Chand, 1879 ILR 4 Cal 402 (420): 5 Ind App 211 (PC), there was a suit by the creditors of a deceased person against his heirs for recover of money from out of the assets. A decree was passed directing the defendants to account for the property. A transferee who took the property after the decree, was held affected by lis pendens.
A contrary view has, however, been taken by the Nagpur High Court3, namely, that the doctrine of lis pendens will not apply unless from the very beginning of the suit or proceeding the right to the property was in question, and that, where in a suit for money, a charge is declared by the decree on certain property, a transfer of the property subsequent to the decree, is not affected by lis pendens. Reliance was placed upon the decision of the High Court of Patna in the under mentioned case4.
In that case the plaintiff sued for the recovery of money and also claimed that certain properties should be charged for the amount that may be decreed, but the Court granted merely a money decree without giving any charge on any property. It was held that a transfer of the property pending the suit was not affected by lis pendens for two reasons, first, that the actual decree did not affect in any way the property transferred, and secondly, that the suit, even though asking for a charge in the plaint, was not one in which any right to immovable property was in question. We are, with respect, of the opinion that the Nagpur view is not correct.
1. Jagannatha v. Ram Chancier, AIR 1935 Mad 589 (592).
2. Subramania v. Esakki Madan, AIR 1953 Tray-Co 364 (366).
3. Badri Das v. Raja Pratapgir, AIR 1940 Nag 8 (13) (DB).
4. Bhagwan Das v. Raja Pratapgir, AIR 1940 Nag 8 (13) (DB).
