Shamsher Bahadur, J.
1. The sole question for determination in the appeal is whether the sale of the land in suit in favour of the appellants is hit by the doctrine of lis pendens?
2. The last male owner of the suit property was Kundan Lal on whose death, his daughter Ishwar Devi succeeded to it. On Ishwar Devi's death on 4th of June, 1950, the question of succession arose once again. Mst. Karti and Mst. Muni appeared before the Revenue Assistant and stated that they wanted the mutation to be in the name of Sunder, husband of Ishwar Devi. The statement was made on 12th of September, 1950, and after verifying from the pedigree-table, the Revenue Assistant attested the mutation in favour of Sunder on 12th of April, 1951. Sunder remained in possession of the land in suit till he sold it to the present appellants, Kanshi Ram and Hari Ram, on 31st of January, 1956, for a sum of Rs. 3,500/- under a registered sale deed.
3. Before the sale took place, a suit was brought by Karti and Muni on 27th of January 1956 against Sunder and one Kesho Ram, a mortgagee from Sunder, for possession of the suit land on the ground that they were the heirs and not Sunder, being the daughters of collaterals of Kundan Lal. That suit was decreed and the appeal preferred by Sunder was dismissed. In pursuance of the decree obtained by Karti and Muni, an execution application was made on 30th of August, 1956 against tha judgment-debtors, Sunder and Kesho Ram. Kanshi Ram and Hari Ram, who claimed to be in possession of the suit property as bona fide purchasers for value preferred objections asserting that their possession could not be disturbed.
It was also pleaded by them that the proceedings in the suit were collusive and the real object of Sunder and the plaintiffs was to deprive them of the valuable rights which they had acquired in the land. It was pleaded further that Sunder, in the suit which had been brought by Karti and Muni on 27th of January, 1956, did not put up the only defence which was available to him that he had become an owner of the property by virtue of the mutation deed, Exhibit O. 3, to which both Muni and Karti had been consenting parties.
4. The executing Court framed the following two issues which arose from the objections which had been preferred by Kanshi Ram and Hari Ram:-
(1) Whether the decree sought to be executed was competent in the suit which was filed in collusion with Sunder judgment-debtor and whether for that reason the principle of lis pendens is not applicable to the present proceedings as claimed?
(2) Whether the decree-holders are barred from dispossessing the objectors by their acts and conduct as claimed by the objectors?
On both these issues, the decision of the executing Court was adverse to the objectors who did not succeed even before the District Judge in appeal. Kanshi Ram and Hari Ram have now come in second appeal to this Court.
5. It has been urged by Mr. Aggarwal, the learned counsel for the appellants, that full price having been paid for the suit property, they became bona fide transferees for value and are entitled to avail of the equitable principle of estoppel embodied in Section 41 of the Transfer of Property Act. Secondly, it was alleged that the doctrine of lis pendens, as stated in Section 52 of the Transfer of Property Act, would not be applicable as the explanation added to it is not founded on principles of equity, justice and good conscience. Mr. Aggarwal urged that, in any event, there was collusion between Sunder, on one hand, and Karti and Muni, on the other, and for that reason the claim of the purchasers could not be defeated on the principle of lis pendens.
6. The first contention of the counsel is based on the mutation, Exhibit O. 3. It appears that on 12th of September 1950, Karti and Muni appeared before the Revenue Officer and stated that they 'wanted' to surrender their rights in the land left by this niece Ishwar Devi in favour of her husband, Sunder. The Revenue Officer wanted some evidence and adjourned the proceedings to 11th of October 1950. The proceedings were again adjourned and on a perusal of the pedigree-table on the next hearing the Revenue Officer satisfied himself that Muni and Karti were related to Ishwar Devi as described by them.
A mutation was accordingly entered in favour of Sunder on 12th of April 1951. So far as the interpretation of Exhibit O. 3 is concerned, I think the Courts below were in error in holding that the statements of Muni and Karti merely amounted to a desire to surrender and nothing more. This consideration, however, is not relevant for the decision of this case as I would explain later.
7. Section 41 of the Transfer of Property Act, on which reliance has been placed by the learned counsel for the appellants is to this effect:
'Where, with the consent, express or implied, of the persons interested in immovable property a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith'.
It is submitted for the respondents that they never consented either expressly or impliedly to Sunder holding himself out as the ostensible owner of the suit property. Mr. Mital has argued that any two women could have represented themselves as Karti and Muni before the Revenue Officer and make a statement that they wanted to surrender their rights in favour of Sunder. From the mutation it does not appear that these persons were identified before the Revenue Officer.
8. The principle embodied in Section 41 is an exception to the general rule that a person cannot pass a better title in the property than he himself has. It has been found by the competent Courts that Sunder has no title to the suit property and Karti and Muni have been declared owners of it. Sunder, therefore, could not validly transfer his rights in the property to the appellants. This result could be avoided only under the equitable principle of estoppel in Section 41 of the Transfer of Property Act.
There is, however, authority for the proposition that the principle of estoppel must yield to the doctrine of lis pendens under which no title in property could be validly transferred during the pendency of litigation in respect of it. In Shafiq-Ullah Khan v. Samiullah Khan, ILR 52 All 139: (AIR 1929 All 943) it was ruled by Sir Shah Muhamad Sulaiman and Pullan JJ., that 'the estoppel arising under Section 41 cannot be such as to override the imperative provisions of Section 52'. In the words of Pullan J., 'sections 41 and 52 are mutually exclusive. In the case of a transfer in the circumstances mentioned above, Section 41 does not arise'. It was held that where the transfer was made during pendency of litigation, no question of estoppel under Section 41 could arise. A similar view was~ enunciated in Gendmal v. Laxman, ILR 1944 Nag 852: (AIR 1945 Nag 86) by a Division Bench of the Nagpur High Court (Niyogi and Digby JJ.) It was ruled that an estoppel under Section 41 cannot override the imperative provisions of Section 52 of the Act,
9. We are, thus, left to determine whether the transfer in favour of the appellants could be saved under Section 52 of the Transfer of Property Act. To reiterate, the sale took place on 31-1-1956 and the suit by Karti and Muni was instituted on 27-1-1956. Mr. Aggarwal has invited me to hold that the explanation to Section 52 in which it is stated that pendency of proceedings would be deemed to commence from the date of the presentation of the plaint does not constitute a rule of justice, equity and good conscience and should not, therefore, be too readily accepted by this Court as only the principles, and not the provisions (barring a few exceptions) of the Transfer of Property Act are applicable to the State of Punjab.
In support of his contention, he has relied on a Division Bench authority of Chief Justice Harries and Mehar Chand Mahajan J. in Raghubar Dial v. Ch. Zahur Ahmad, 1946 Pun LR 517 in which it was held that
'the proviso to Section 58(c), Transfer of Property Act, does not embody any rule of equity, justice or good conscience but only a technical rule as to proof and was added in 1929 in all probability to prevent more litigation and for convenience'.
On a parity of reasoning, it is argued that the explanation to Section 52 of the Act should not be held to be applicable as in circumstances of this case it would work into an injustice and hardship for the appellants. I am prepared to assume for the sake of argument that Sunder may not have known about the suit which had been brought by Karti and Muni when he made the transfer in favour of the appellants. It might, however, well be asked when the pendency of litigation should be deemed to start? In answering this question, we would be led to confusion and inconvenience if we put aside the cut and dried rule of computation contained in the explanation to Section 52.
10. It remains to be seen whether the parties, other than the appellants, have been in collusion to justify the inference that the transaction was not bona fide. This is a question which has been considered in some detail and elaboration by the lower appellate Court which is the final Court of appeal on questions of fact. I do not feel called upon again to review the evidence and embark on a discussionwhich is not within the scope of this Court in second appeal.
11. In the result, this appeal must fail and is accordingly dismissed. I would, however, leave the parties to bear their own costs throughout.