Is the defence of bonafide purchaser available against the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882?

The unsuccessful plaintiff is the appellant herein. She filed a suit in O.S.No.187 of 2009 seeking declaration that she is a bonafide purchaser of Plot Nos.9, 10 and 11 and also sought for declaration that the decree obtained by one S.Jayaraj, predecessor in interest of the respondents 1 to 5 in O.S.No.34 of 1984 on the file of Sub Court, Vellore in respect of the suit property was invalid and nonest in the eye of law. The plaintiff also sought for a permanent injunction restraining the defendants 1 to 5 or any person claiming through her from interfering with her peaceful possession and enjoyment of the suit property. Further the plaintiff sought for a permanent injunction restraining the defendants 1 to 5 or any person claiming through them from implementing the decree obtained in O.S.No.34 of 1984, pursuant to the execution petition in E.P.No.10 of 2003. The Trial Court dismissed the suit and the first appeal filed by the plaintiff in A.S.No.3 of 2021was also dismissed by the first appellate court. Challenging the concurrent findings of the courts below, the plaintiff has come before this court.

According to the plaintiff, she purchased plot No.9 comprised in survey No.135/1C in Maniampet Village, Wallajah Panchayat Union from the 8 th defendant, namely Revathi, represented by her power of attorney Kaliappan, 7 th defendant, under a registered sale deed dated 31.08.1988. Similarly, the plaintiff’s mother Soundaram purchased plot Nos.10 and 11, situated in the above mentioned survey number from one A.M.Wilson-6 th defendant, represented by his power of attorney Kaliappan-7 th defendant under a registered sale deed dated 17.03.1988. The plaintiff’s mother Soundaram died on 30.09.2007 leaving behind her husband D.Henry Sundararaj, her daughters, namely the plaintiff Prema Ravi Selvakumari and Helan Santhakumari to succeed her estate. Thereafter, the other 3 legal heirs executed a release deed in favour of the plaintiff releasing their 3/4th share in the property purchased by Soundaram in favour of the plaintiff. Thus, the plaintiff became absolute owner of plot Nos.9, 10 and 11, which is described as suit property.

It is the further case of the plaintiff that after purchase, she had put up construction in the suit property and she has been in possession and enjoyment of the same. It is also stated that the deceased 6th defendant A.M.Wilson had entered into a sale agreement with the deceased S.Jayaraj for selling the suit property among other property with an extent of 1.28 ½ acres situated in survey No.135 and latter, the said Jayaraj obtained a decree for specific performance against the said A.M.Wilson in O.S.No.34 of 1984 on the file of Sub Court, Vellore on 29.09.1989. Subsequently, sale deed was also executed in favour of S.Jayaraj through court in respect of the suit schedule property.

It was also the specific case of the plaintiff that she was not aware of the legal proceedings initiated by S.Jayaraj against the above said A.M.Wilson in respect of the suit schedule properties and therefore, she was a bonafide purchaser of the suit properties for a valuable consideration. The plaintiff further stated that pursuant to the sale deed executed in favour of S.Jayaraj through court, an execution petition has been filed by the defendants 1 to 5 seeking possession of the property. According to the plaintiff, since she is a bonafide purchaser of the property, she cannot be dispossessed by the defendants 1 to 5 in execution of decree in O.S.No.34 of 1984. In such circumstances, the plaintiff filed the suit seeking the reliefs as stated supra.

The 3rd defendant filed a written statement and the same was adopted by the defendants 1, 4 and 5. In the written statement of the defendants, it was stated that the predecessor in interest of the defendants 1 to 5, namely S.Jayaraj obtained a decree for specific performance in respect of the suit property in O.S.No.34 of 1984 on the file of Sub Court, Vellore and the same was affirmed by the first appellate court in the appeal suit and also by the High Court in the second appeal. Thereafter, sale deed was also executed by the court in favour of said S.Jayaraj, on the basis of the decree passed in O.S.No.34 of 1984. Now execution petition in E.P.No.10 of 2003 has been filed seeking possession of the property. It is further stated by the defendants that the plaintiff and her vendors created sale deeds and power of attorney deeds, during the pendency of the above mentioned suit in O.S.No.34 of 1984 on the file of Sub Court, Vellore and therefore, the said documents will not bind the defendants 1 to 4. It was also specifically pleaded by the defendants that the documents, under which the plaintiff and her predecessors in interest purchased the suit properties are all hit by doctrine of lis pendens and therefore, the present suit filed by the plaintiff is not maintainable. The defendants also stated that the plaintiff is not a bonafide purchaser of the property and hence, the prayers sought for in the suit are liable to be rejected. On these pleadings, the defendants sought for dismissal of the suit.

Before the trial court, on behalf of the plaintiff, two witnesses were examined as PW1 and PW2 and 23 documents were marked as Ex.A1 to Ex.A23. On the side of the defendants, the 2nd and 10th defendants were examined as DW1 and DW2 respectively, however, no document has been marked on their side.

On perusal of oral and documentary evidence available on record, the Trial Court came to the conclusion that the sale deed, under which the plaintiff claiming right over the suit properties were hit by doctrine of lis pendens and therefore, the plaintiff was not a bonafide purchaser of the suit properties and as a necessary consequence, the trial court dismissed the suit. Challenging the findings of the trial court, the plaintiff preferred an appeal in A.S.No.3 of 2021 on the file of I Additional District Judge, Ranipet. The said first appeal was dismissed by affirming the judgment and decree passed by the Trial Court. Aggrieved by the same, the present second appeal has been filed.

The learned counsel for the appellant/plaintiff would submit that no public notice was given regarding the proceedings initiated by the deceased S.Jayaraj against the above said A.M.Wilson and therefore, the plaintiff could not acquire knowledge about the legal proceedings, inspite of discreet enquiry conducted by her. In such circumstances, the plaintiff shall be treated as a bonafide purchaser for value and as a consequence, the courts below ought to have decreed the suit as prayed for.

The learned counsel for the appellant would further submit that S.Jayaraj had entered into a sale agreement with A.M.Wilson only for purchase of undivided half share in the suit survey number. Therefore, the suit for specific performance filed by S.Jayaraj for performance of the contract for purchase of undivided share was not maintainable. Learned counsel also submitted that based on the decree passed in the above said suit for specific performance in respect of the undivided half share, the defendants 1 to 5 are not entitled to dispossess the plaintiff. In support of the said contentions, the learned counsel for the appellant relied on the following judgments. i) Zarif Ahmad (dead) through legal representatives and another Vs. Mohd. Farooq reported in (2015) 13 Supreme Court Cases 673. ii) Ramdas Vs. Sitabai and others reported in (2009) 7 Supreme Court Cases 444. iii) Thomson Press (India) Ltd. Vs. Nanak Builders & Investers P. Ltd. And others reported in (2013) 5 Supreme Court Cases 397 iv) Jagdish Dutt and another Vs. Dharam Pal and others reported in (1999) 3 Supreme Court Cases 644 v) Kartar Singh Vs. Harjinder Singh and others reported in (1990) 3 Supreme Court Cases 517.

It seen from the typed set of papers, especially Ex.A22-decree passed in O.S.No.34 of 1984 that the said suit was filed by S.Jayaraj against A.M.Wilson on 10.01.1984. The plaintiff purchased plot No.9 from the 8th defendant, namely Revathi represented by her Power of Attorney, the 7th defendant under Ex.A4 sale deed on 31.08.1988, pending suit. Likewise, the 8th defendant Revathi purchased Plot Nos.10 and 11 from the 6th defendant under Ex.A1 dated 09.06.1986, pending suit. Subsequently, the above said Revathi represented by her power of attorney, the 7th defendant, sold the properties to plaintiff’s mother Soundaram under Ex.A2 sale deed dated 17.03.1988, pending suit. All these transactions had taken place pending suit in O.S.No.34 of 1984 and ultimately the said suit was decreed in favour of S.Jayaraj on 20.09.1989. Subsequently, the plaintiff’s mother Soundaram died and her other legal representatives had executed a release deed in favour of plaintiff on 26.06.2009 under Ex.A5. Therefore, the sale in favour of the plaintiff and the sale in favour of the plaintiff’s predecessor in interest, namely Soundaram and her vendor Revathi were hit by doctrine of lis pendens. It is settled law that the defence of bonafide purchaser is not available to doctrine of lis pendens recognised under Section 52 of Transfer of Property Act. In this regard, a reference may be had to G.T.Girish Vs. Y.Subba Raju (dead) by legal representatives and another reported in (2022) 12 Supreme Court Cases 321, wherein, the Apex Court held as follows: 128. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the principle of lis pendens is, not to be confounded with the aspect of good faith or bonafies. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.

In Guruswamy Nadar Vs. P.Lakshmi Ammal (dead) through LRs and others reported in (2008) 5 Supreme Court Cases 796, the Apex Court, after considering Section 19 of the Specific Relief Act, categorically held that doctrine of lis pendens will affect the subsequent sale pending suit and second sale will not override the first sale transaction in respect of which specific performance suit is instituted. The relevant observation reads as follows. 9. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good an sufficient reason but in the present case, there is no difficulty because the suit was filed on 03.05.1975 for specific performance of the agreement and the second sale took place on 05.05.1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale cannot have the orerriding effect on the first sale.

Both the courts below rightly came to the conclusion that the plaintiff and her predecessors in interest being purchasers of the suit property, pending suit, are not entitled to claim themselves as bonafide purchasers and hence, the prayer sought for in the suit for declaration that the plaintiff is a bonafide purchaser is not maintainable. Once we came to the conclusion that the plaintiff is not a bonafide purchaser of the suit property, the other reliefs sought for by the plaintiff that the decree passed in O.S.No.34 of 1984 is not void and nonest in the eye of law is also not maintainable.

The plaintiff wants to assail the said decree only on the ground that she is a bonafide purchaser for value. Since the plaintiff is a pendente lite purchaser, she is not entitled to claim herself as a bonafide purchaser. Therefore, the challenge made by the plaintiff to the validity of the decree, based on the said plea is also not maintainable.

It is also seen from the records that the predecessors in title of the defendants 1 to 5 obtained a decree for specific performance with regard to the suit property and said decree is stated to be confirmed by the first appellate court in a first appeal and also by this court in a second appeal. It is also seen that sale deed was already executed by the court in favour of Jayaraj, predecessor in interest of defendants 1 to 5, even as per pleading of the plaintiff in plaint. In such circumstances, the prayer sought for by the plaintiff seeking injunction restraining the defendants 1 to 5 from interfering with her peaceful possession and enjoyment of the suit property and also from implementing the lawful decree is not sustainable in the eye of law. Both the courts below rightly came to the conclusion that none of the prayers sought for by the plaintiff could be sustained and dismissed the suit and I do not find any perversity in the findings reached by the courts below.

The learned counsel for the appellant wanted to argue that the said S.Jayaraj had obtained decree only in respect of half share in the suit property and hence, the decree cannot be executed against the plaintiff. It is pertinent to mention that in her pleadings, the plaintiff clearly admitted that S.Jayaraj obtained a decree for specific performance and sale deed had been executed in his favour through court, in respect of the suit property. In paragraph No.6 of the plaint, the plaintiff in an expressed terms admitted that pursuant to the specific performance decree, a sale deed was executed in favour of S.Jayaraj through court in respect of the suit schedule property. Therefore, the submission made by the learned counsel for the appellant that S.Jayaraj obtained a decree only for undivided half share is not sustainable, inview of the admission made by the plaintiff herself in her pleadings.

A perusal of Ex.A22, decree passed in O.S.No.34 of 1984 would indicate that the decree for specific performance was granted in respect of 1.28 ½ acres of land in suit survey number 135 with four specific boundaries. Therefore, the decree for specific performance has been granted in respect of larger extent of the property with an extent of 1.28 ½ acres with four boundaries along with 2/4 share in the well, channel etc. found thereon. Hence, the submission made by the learned counsel for the appellant in this regard is not acceptable to this court.

If the appellant has got any independent right over the suit property dehors the sale deeds which are hit by doctrine of lis pendens, she can work out her remedy, when a decree holder attempts to execute the decree in O.S.No.34 of 1984, by filing appropriate application and she cannot canvas the same by filing independent suit. In fact, the said right, if any available to the plaintiff has been preserved by the courts below.

The judgment in Zarif Ahmad (dead) through legal representatives and another Vs. Mohd. Farooq reported in (2015) 13 Supreme Court Cases 673 cited by the learned counsel for the appellant is pertaining to the identification of the property in a suit for permanent injunction. In the said case, the court held that the property was described by survey numbers with four boundaries. Therefore, the arguments regarding lack of description of the property was rejected on the ground that the length and breadth of the property need not be mentioned in a suit for injunction as in the case of mandatory injunction. The law laid down in the above said case law is not applicable to the facts of the present case.

In the judgment in Ramdas Vs. Sitabai and others reported in (2009) 7 Supreme Court Cases 444 cited by the learned counsel for appellant, it was held that the transfer made by the one co-owner with the consent of other co-owner is valid only to the extent of right available to the predecessor. In the case on hand, the appellant/plaintiff never pleaded that the above said S.Jayaraj purchased only undivided share in the suit property. In fact, as mentioned earlier, there is a clear admission in the pleading by the plaintiff that S.Jayaraj got sale deed through court in respect of the suit schedule property. The first appellate court rightly held that the plaintiff is not entitled to raise new points at the time of arguments before the appellate court, without foundational plea. Therefore, the said citation is also not applicable to the facts of the present case.

In the judgment in Thomson Press (India) Ltd. Vs. Nanak Builders & Investers P. Ltd. And others reported in (2013) 5 Supreme Court Cases 397, the Apex Court held that the right of pendente lite purchaser is subservient to the right of the litigating parties. In the case on hand, the above said S.Jayaraj obtained a decree for specific performance and thereafter, got sale deed in his favour through court. Therefore, the right, if any, acquired by the present plaintiff is subservient to the right acquired by S.Jayaraj, as per the decree passed in O.S.No.34 of 1984. In such circumstances, the above said citation is also not helpful to the case of the appellant/plaintiff. Since there is no pleading by the plaintiff that S.Jayaraj purchased only undivided share in the suit property, the case law cited by the learned counsel for the appellant in Jagdish Dutt and another Vs. Dharam Pal and others reported in (1999) 3 Supreme Court Cases 644 is also not applicable to facts of the present case.

In view of the above discussion, I do not find any serious error in the findings of the courts below and hence, I do not find any question of law much less substantial question of law arising for consideration in the second appeal.

Accordingly, this second appeal is dismissed, confirming the concurrent findings of the courts below. There shall be no order as to costs. Connected miscellaneous petition is closed.