Burden of proof is on whom to prove that transfer is affected by lis pendens?

The contention that Ext. A6 is hit by the rule of lis pendens embodied in Section 52 of the Transfer of Property Act does not appear to be correct. It is true that execution and registration of Ext. A6 and the presentation of the plaint were on the same day. So also, Ext. A6 shows that it was registered only at 2.30 p.m. That does not mean that execution and presentation for registration were at that time. It must have been executed and pre- sented for registration much earlier. Then only after the formalities and in the usual course it could have come up before the Sub Registrar at 2.30. There is no evidence regard ing time at which Ext.A6 was executed. "Transferred or otherwise dealt with" the property appearing in Section 52, T.P. Act is not the admission of execution before the Sub Registrar or the registration by him. That is execution and transfer of possession arid title as the case may be. The burden is on the party relying on the effect of Section 52 and pleading lis pendens to prove that his suit was instituted before the execution of the deed of transfer which he is impeaching (Hafiuddin v. Brijmohan (1913) 21 Ind Cas 602 followed in Mathan Philip v. Ithak, 1959 Ker LT 301 : (AIR l960 Ker 98).1

Kerala High Court

Narayana Pillai Chandrasekharan ... vs Kunju Amma Thankamma on 27 July, 1989

Equivalent citations: AIR 1990 Ker 177

S. Padmanabhan, J.

1. Plaintiff appeals against the appellate decree dismissing his suit for specific performance of an agreement for sale in reversal of the decree of the trial Court.
2. Ext. A1 is the agreement, unilaterally executed by the defendant in favour of the plaintiff, who is her sister's son-in-law, on 6-4-1978. The property is 3 1/2 cents and a building. Consideration is Rs. 5,000/-. Term is three years. Towards the sale consideration, :the appellant executed a pronote in favour of the respondent on 6-4-1978 itself for Rs. 4,900/- with a term of three years. Balance amount of Rs. 100/- was agreed to be paid when the sale deed is executed. That means, in effect, the entire sale consideration of Rs. 5,000/- was to be paid when the sale deed is executed.
3. On 27-3-1981, appellant issued notice demanding sale and requesting defendant to appear before the Sub-Registrar on 6-4-1981. On 3-4-1981, respondent sent Ext. A4 reply repudiating Ext. A1 and stating that even though she signed Ext. A1 it was without knowing the contents and the agreement was for executing sale deed for a consideration of Rs. 10,000/- within one year. She expressed her disinclination and did not appear.
4. The suit was filed on 4-6-1981 alleging that the appellant was and is ready and willing whereas the respondent was not. Respondent also took the stand that she was also ready and willing to execute the sale deed on the terms actually agreed upon and since the appellant, did not come forward, she sold the property on 4-6-1981 to one Divakaran Nair for Rs. 10,000/-. 4-6-1981 is the date on which the suit was filed. She also mentioned about the fact that her claim under the pronote, which is part of the sale consideration has become barred and, therefore, time stipulated has to be taken as the essence of the contract. In the replication, appellant took the stand that if the pronote has become barred by limitation, respondent has to reap the consequences.
5. Jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, even though the discretion is not arbitrary but should be sound and judicial, guided by judicial principles. When the term of the contract or the conduct of the parties at the time of entering into the con-tract or the other circumstances under which the contract was entered into are such that the contract, gives the plaintiff an unfair ad-vantage over the defendant, the Court can exercise the discretion not to grant specific performance even if it is lawful.
6. Ext. A1 is a unilateral document, in which there is no mutuality. It was executed by the defendant alone. It cannot be termed as a contract. There was nothing which the defendant could have enforced in case of breach by the plaintiff except the pronote which was liable to become time barred and actually became so on the expiry of the term fixed in Ext. A1. Even though Ext. A1 contained provisions that in case of breach by the plaintiff he is liable to pay Rs. 1,000/- the defendant cannot enforce it because Ext. A1 was by the defendant alone. Parties were not thus placed on equal position. Further the recital in Ext.A1 shows that the amount under the pronote is payable only within 3 years at the option of the plaintiff. That means, if the plaintiff does not pay the amount on or before 6-4-1981, there is no remedy for the defendant under the pronote. The stand taken by the plaintiff in the replication is that if the pronote gets barred and thus becomes unenforceable, defendant alone is responsible for it. From that contention, it is evident that he is not accepting the provision in Ext. A1 that the pronote amount is payable only at his option within three years. Even though he said that he was and is ready and willing, he did not deposit the sale consideration in Court. His stand appears to be that he is, bound to pay only Rs. 100/- because the liability under the pronote is something to be enforced by the defendant. In these circumstances, in spite of the stand taken by the defendant, I do not think that it is in proper exercise of judicial discretion to refuse specific performance especially because of the time lag and the unusual term of three years.
7. Though the appellant claimed that he was put in possession under Ext. A5 lease deed on 7-4-1978 that claim does not appear to be correct. The property is 3 1/2 cents of land which is fully covered by a shop building leased out to one Krishnankutty who has attorned to the vendee of the defendant. That lessee may not be a necessary or proper party to this litigation. But Divakaran Nair, in whose favour the respondent executed Ext. A6 sale deed on 4-6-1981 and to whom possession was given, is a necessary or at least a proper party. The decision in M.K. Narattukulam v. Hemchand (1988) 2 Ker LT 166, relied on by the appellant in that respect, was tendered on different facts. That was a case in which the agreement for sale was executed by some of the co-owners' alone and the plaintiff did not want to implead the other co-owners or get any relief from them. He was satisfied with specific performance of whatever right the contracting parties had. Here, the position is different and an effective sale deed is possible only by Divakaran Nair and the respondent had no title at all after Ext. A6 to be conveyed. Even though the sale deed was mentioned in the written statement, he was not impleaded so far.
8. The contention that Ext. A6 is hit by the rule of lis pendens embodied in Section 52 of the Transfer of Property Act does not appear to be correct. It is true that execution and registration of Ext. A6 and the presentation of the plaint were on the same day. So also, Ext. A6 shows that it was registered only at 2.30 p.m. That does not mean that execution and presentation for registration were at that time. It must have been executed and pre- sented for registration much earlier. Then only after the formalities and in the usual course it could have come up before the Sub Registrar at 2.30. There is no evidence regard ing time at which Ext.A6 was executed. "Transferred or otherwise dealt with" the property appearing in Section 52, T.P. Act is not the admission of execution before the Sub Registrar or the registration by him. That is execution and transfer of possession arid title as the case may be. The burden is on the party relying on the effect of Section 52 and pleading lis pendens to prove that his suit was instituted before the execution of the deed of transfer which he is impeaching (Hafiuddin v. Brijmohan (1913) 21 Ind Cas 602 followed in Mathan Philip v. Ithak, 1959 Ker LT 301 : (AIR l960 Ker 98).
9. It cannot be said that in no case law recognises fractions of a day. As observed by Grove, J. in Campbell v. Strangeways (1877) 3 CPD 105, law will distinguish the fractions of a day where it is necessary not merely for the purpose of justice, which is a vague term, but also, for the purpose of the decision to show which of the two events in question first happened. Judicial proceedings are to be considered as taking place at the earliest period of the day on which they, are done Subbayya v. Yellamma.(1886) ILR 9 Mad 130. That is when there is no evidence regarding the exact time. But the presentation of the plaint or the institution of the proceeding in a Court which alone is the commencement of the pendency of a suit or proceeding/for the purpose of Section 52 under the explanation, is not a judicial proceeding which is capable of resisting the above presumption. Appellant was not able to say when the plaint was presented. That means that even though both were on the same day he was not able to discharge his burden to prove that the transfer or otherwise dealing with property under Ext. A6 by the respondent was after the commencement of the lis. If so, Ext. A6 must be taken as not affected by Section 52 T.P. Act. Especially when the pronote became barred by limitation and the appellant has not deposited the amount of Rs. 5,000/-, Ext.A6 cannot be be challenged otherwise also.
10. Under Section 19(b) of the Specific Relief Act, specific performance of a contract cannot be enforced against a transferee for value who has paid him money in good faith and without notice of the original contract. There is no case for the appellant anywhere that Divakaran Nair is not a bona fide purchaser for value without notice of the contract. Even otherwise that is a plea available to him and could be decided in case of dispute only with him on the array of parties after giving him an opportunity.
11. It is clear from the ultimate paragraphs of Sections 54 and 40, T.P. Act that a contract for sate of immovable property though does not, of itself, create any interest in or charge on such property, it creates, an obligation arising out of the contract and annexed to immovable property, not amounting to an interest in the property. Such obligation could be enforced against a transferee with notice of the contract or a gratuitous transferee affected thereby. The equitable ownership in property recognised by equity in England is thus translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation, which may be enforced against a transferee with notice or a gratuitous transferee. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in England is alien to Indian law which recognises one owner, that is, the real owner. But many of the principles of English Equity have taken statutory form in India and have been incorporated in occasional provisions of the various Indian statutes like Trust Act, Specific Relief Act, T.P, Act, etc. Bai Desabai v. Mathurdas Govinddas, AIR 1980 SC 1334. One such principle is the one stated above and applicable to this case.
12. Thus the position is that the respondent has no right over the property and effective enforcement of the specific performance cannot be had against him. Such an enforcement could only lead to another litigation. Divakaran Nair, who is a necessary party and against whom alone, if at all, enforcement could have been claimed, is consciously and deliberately not made a party also. Now it is too late for that purpose. Rights and positions of the parties have changed due to lapse of time. Further, there is no useful purpose going to be served by a remand of the case for fresh trial after impleading. Appellant cannot, therefore, claim any relief.
Second appeal is dismissed. No costs.

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