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Joginder Singh Bedi Vs. Sardar Singh Narang and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtDelhi High Court
Decided On
Case NumberRegular First (OS) Appeal No. 24 of 1982
Judge
Reported inAIR1984Delhi319; 26(1984)DLT162; 1985RLR11
ActsTransfer of Property Act, 1882 - Sections 52
AppellantJoginder Singh Bedi
RespondentSardar Singh Narang and anr.
Advocates: S.L. Bhatia,; C.L. Itorora,; Virender Mehta,;
Cases ReferredSince Bellamy v. Sabine (supra
Excerpt:
transfer of property act, 1882 - section 52--suit pending for specific performance in respect of a property on the basis of a agreement to sell property sold to third party--whether sale is void--doctrine of his pendens--discussed and explained.; the suit property was agreed to be sold by the appellant to respondent no. 2 and part consideration was paid. the appellant failed to perform his part of the agreement and did not execute the sale deed. respondent no. 2 filed a suit of specific performance of the agreement to sell. the appellant transferred the property by sale to third party. the single judge decreed the suit for specific performance. the vendor appealed against that order and the purchaser filed cross-objections. dismissing the appeal and the cross-objections,; the.....avadh behari rohatgi, j. (1) this appeal arises out of a suit for specific performance. the suit was decreed in favor of the purchaser by a learned single judge of this court on 4-12-1981. from that decree the vendor appeals to this court. a transferee of the property has also filed cross-objections. (2) the appellant joginder singh bedi was the owner of house no. a-67 south extension part i, new delhi. he is the vendor. on 29-4-1972 he agreed to sell the house to narotam singh, respondent no. 2, a thailand based indian for a sum of rs. 1,35,000. he is the purchaser. at the time of the execution of the agreement to sell a sum of rs. 20,000 was paid by the purchaser to the vendor. in furtherance of the agreement to sell the vendor executed a sale deed in favor of the purchaser on 3-5-1972.....
Judgment:

Avadh Behari Rohatgi, J.

(1) This appeal arises out of a suit for specific performance. The suit was decreed in favor of the purchaser by a learned single judge of this court on 4-12-1981. From that decree the vendor appeals to this court. A transferee of the property has also filed cross-objections.

(2) The appellant Joginder Singh Bedi was the owner of House No. A-67 South Extension Part I, New Delhi. He is the vendor. On 29-4-1972 he agreed to sell the house to Narotam Singh, respondent No. 2, a Thailand based Indian for a sum of Rs. 1,35,000. He is the purchaser. At the time of the execution of the agreement to sell a sum of Rs. 20,000 was paid by the purchaser to the vendor. In furtherance of the agreement to sell the vendor executed a sale deed in favor of the purchaser on 3-5-1972 engrossed on a stamp paper of the value of Rs. 10,800. The purchaser asked the vendor to obtain an income tax clearance certificate and to get the sale deed registered. The purchaser was prepared to pay the balance of the purchase price, that is, Rs. 1,15,000 at the time of the registration of the sale deed. The vendor did not do his part. He took no steps to obtain the income. tax clearance certificate. And without the clearance certificate the sale deed could not be registered. The purchaser sent a telegram and issued a notice to the vendor on 3-7-1972 asking him to complete the sale. But as the vendor did not come forward the purchaser instituted a suit for specific performance on 10-7-1972.

(3) At the threshold the vendor pleaded that he had already sold the property to his sister Smt. Nirmal Jyot on 3-8-1972. thereforee, the purchaser sought amendment of the plaint by* seeking to add the sister as a party defendant to the suit. The amendment was allowed on May 14, 1973. The sister was added as defendant No. 2 to the suit. She will hereafter be generally referred to as the sister. She is the transferee. Her case is that she is a transferee in good faith for value without notice.

(4) This is a triangular contest on the one side is the purchaser. On the other side are the vendor and his sister, the transferee. The vendor and the sister contested the purchaser's suit on a variety of grounds. Several issues were raised. But the central point in this case is : What is the effect of the sale made by the vendor in favor of the sister on 3-8-1972 The transaction is clearly hit by the doctrine of lis pendens contained in section 52 of the Transfer of Property Act, .1882. The suit was filed by the purchaser on 10-7-1972. The vendor sold the property to the sister on 3-8-1972. Section 52 provides that pendents lite neither party to the litigation in which any right to immovable property is in question can alienate or otherwise deal with such property so as to affect his opponent. On the doctrine I of lis pendens the leading case in England is Bellamy v. Sabine (1857) 1 D&J566; = 44 English Reports 842(1). In India the leading case is Faiyaz Hussain Khan v. Munshi Prag Narain (1907) 34 I A 102(2). The legal position seems to be clear. The sale in favor of the sister will not affect the rights of the purchaser who has obtained a decree in his favor. The only question is whether the decree has rightly been passed.

(5) The doctrine of lis pendens with which section 52 is concerned is not, as Turner Lj observed in Bellamy v. Sabine (supra), 'founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice. It is. . . a doctrine common to the Courts both of law and of equity, and rests'. ... upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail.' The correct mode of stating the doctrine, as Cranworth L.C. observed in the same case, is that 'pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent.' 'Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had no notice of the pending proceedings. If this were not so there would be no certainty that the litigation would over come to an end. The principle is well established that in a suit for specific performance the transferee pendente lite is bound by the result of the suit.'

(6) The broad purpose of section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination.' (Gouri Dutt Maharaj v. Sukur Mohammed .

(7) Applying these principles it is evident that the sale in favor of the sister cannot affect the rights of the purchaser. The transferee cannot be allowed to defeat the decree in favor of the purchaser. Two dates must be remembered. The suit was commenced on 10-7-1972, The sale in favor of the sister was made on 3-8-1972. So the sale is directly hit by section 52. The result will be that the transferee, acquiring the immovable property during the pendency of the suit, will be bound, by the application of the doctrine of lis pendens, by the decree which may eventually be passed in the suit. The transferee cannot defeat the rights of the purchaser simply because she has acquired rights in the immovable property. Because this very immovable property was the subject matter of the pending litigation. The object of section 52 is to subordinate all derivative interests or all interests derived from the parties of a suit by way of transfer pendente lite to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder.

(8) The basis of doctrine of lis pendens is that a party to a suit cannot be allowed to shorten the arms of the court in dealing with the suit by transfers to a third party. (Gangubai v. Pagubai, Air 1939 Bombay 403(4). In other words section 52 is the long arm of the court. The vendor thought that he will, by making the transfer in favor of his sister, put the property out of the reach of the court. Little did he realise that the long arm of the court can reach the property and the purchaser will be given that very property by decreeing his suit for specific performance.

(9) The case of the sister is that she is a bona fide transferee. She claims to have purchased the property pursuant to an agreement to sell which allegedly she entered into with the vendor on 25-2-1972, prior to the agreement between the vendor and the purchaser. She invokes section 19(b) of the Specific Relief Act, 1963 to protect her right. Section 19(b) says: 19. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(A)..........

(B)any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in

(10) Assuming that she is a transferee who has paid money in good faith and without notice of the contract with the purchaser, it must be remembered that she is a purchaser pendente lite and thereforee takes nothing. She has no prior equity nor any pre-existing right. (See Munnilal v. Bhaiyalal, : AIR1962MP34 . Section 19(b) protects a transferee but not a transferee pending litigation. Section 52, Transfer to Property Act has an overriding effect. On the short ground that the sale dated 3-8-1972 in her favor is hit by the provision of section 52 of the Transfer of Property Act, I will hold that the rights of the purchaser will not be affected.

(11) Apart from this on an appreciation of the evidence led by the vendor and the sister regarding the prior agreement of sale dated 25-2-1972 the learned judge came to the conclusion that it was 'a crude and clumsy attempt' to fabricate false evidence. He roundly condemned the action of the vendor 'in falsifying the record to bolster up a false defense.' The evidence of the vendor he described as a 'plethora of lies'.

(12) The case of the vendor and the sister rests on an agreement to sell dated 25-2-1972 alleged to have been entered into by the vendor and the transferee who is none other than his own sister. The sister agreed to buy this property for Rs. 90,000 from the vendor. A written agreement on a stamp paper of Rs. 1.50 was produced in evidence. It was alleged that Rs. 20,000 were paid at the time of the execution of the agreement and Rs. 40,000 were paid by the sister to the vendor that very evening. It appears that nothing was done between February and August to complete the sale. After the purchaser had instituted the suit on 10-7-1972 the vendor in hot haste took immediate steps to complete the sale in favor of his sister. On 1-8-1972 he applied to the income tax authority for obtaining as income tax clearance certificate. He got the certificate on 2-8-72. On 3-8-72 he executed a sale deed in favor of the sister and got it registered. So she became the purchaser.

(13) The main question that was' argued before the learned judge was whether the agreement dated 25-2-1972 was a genuine document. Voluminous evidence was given by the vendor and the sister to show that the agreement was genuine and the sister was bona fide transferee for value without notice. On a consideration of the entire evidence in the case I have come to the conclusion that this agreement is a bogus and a fictitious document which was executed after 3-5-1072 when the vendor had executed the sale deed in favor of the purchaser and on second thought coming to him the vendor thought of a way to wriggle out of the transaction with the purchaser. A host of circumstances show that the agreement dated 25-2-1972 was not in existence till the vendor changed his mind after 3-5-1972 to defeat the suit which the purchaser brought on 10-7-1972. There seems to be no doubt that between 3-5-1972 and 10-7-1972 this scheme to ditch the purchaser was conceived so that his suit is frustrated.

(14) Firstly, the vendor is the real brother of the sister. This close kinship casts great suspicion on the genuineness of the transaction. On the mind of the learned judge this close relationship left 'an indelible impression' and he gave this single factor consideration weight. The entire transaction set up in favor of the sister seems to be a sort of a family affair and no more than a paper transaction. It was a smoke screen to hide the property behind the sister. If such an agreement had existed in favor of the sister ordinarily the vendor would not have entered into a subsequent agreement with the purchaser for the sale of the same property. Nor was the agreement of 25-2-1972 with sister ever disclosed to the purchaser. For the first time it was revealed to him on 18-5-72 when a registered letter Was sent by the vendor to the purchaser complaining of the breach of the contract by him.

(15) Secondly, the sale price agreed upon between the vendor and the sister was Rs. 90,000 which is judiciously low. It is in evidence that in December 1971 one Gandhi of Thailand had agreed to purchase the property for Rs. 1,89,000. In February 1972 the sister says that she agreed to purchase it for Rs. 90,000 which is less than half the price which Gandhi was prepared to pay two months earlier. In April 1972 the purchaser agreed to buy the property for Rs. 1,35,000. It is, thereforee, unbelievable that the vendor was generous enough to sell the property for a sum of Rs. 90,000 to his sister and thereby make an 'outright gift' to her of such a large amount. The vendor was admittedly in adverse financial circumstances because his creditors were pressing him hard for payment of their debts. So no vendor would sell the property at an undervalue when the going is good and the prices are rising.

(16) Thirdly, there is no proof that the sister ever paid the sale price of Rs. 90,000. She says that at the time of the agreement she paid Rs. 20,000 and in the evening she paid another sum of Rs. 40,000. At the time of the registration of the sale deed she paid Rs. 20,000. A balance of Rs. 10,000 she retained for purposes of house tax. All the payments are alleged to have been made in cash. Except that there is an endorsement on the sale deed regarding payment of Rs. 20,000 before the Sub- Registrar there is no proof that consideration passed from the sister to the vendor. 'The sister in her evidence said that she got gifts of various amounts from her brothers from time to time and out of the gifted money she made the payment of Rs. 90,000. There is absolutely no proof of gifts on the record except the bold statement of the sister. The donors have not come in evidence to attest the fact of the gifts.

(17) Fourthly, it appears to me from the evidence that the father of the vendor and his sister was the moving spirit in this litigation. The broker's evidence shows that the vendor consulted him when the purchaser brought the sale deed to him for signatures on 3-5-1972. The vendor was living at 70, Malcha Marg v/here the family lived at the material time. The sister was also living with the father because of her divorce with her first husband. So father was the adviser to his son and the protector of his daughter. It is reasonable to assume that if there had been a genuine agreement in favor of the sister to sell the property to her for Rs. 90,000 the father would have been the first person to stand up and say to the son that he cannot back out of the transaction he had entered into with his daughter. The value of Rs. 90,000 is very low. And if price had fallen from Rs. 1,89,000 to Rs. 90,000 between December, 1971 and February 1972 the father as the well-wisher of the daughter would have insisted upon the sale being completed in favor of his daughter and would not have allowed the son, the vendor, to sign the sale deed in favor of the purchaser.

(18) Fifthly, the father has not come in witness box. If he had come he could have told us about the real state of things in the family. He would have disclosed what was really happening behind the close doors of the family.

(19) Sixthly, the witnesses of the agreement have not been examined. They are none other than the sister's uncle and brother. They were the best persons to prove that the parties did enter into an agreement on the date it purports to bear.

(20) Seventhly, there is such a great delay between February 1972 when the agreement was entered into and August 1972 when the sale was completed that it arouses suspicion and casts doubts on the genuineness of the entire transaction.

(21) Eighthly, the vendor wrote letters to the Municipal Corporation for finding out the house tax, to income tax authorities for finding out the income tax dues, to the Ministry of defense who were in occupation of one of the floors' in the house for attornment to his sister. These letters have been held by the learned judge as fabricated evidence created in collusion with the officials concerned. These letters were showed In the record of the concerned departments to create false evidence. These letters refer to the sister as the proposed purchaser as well as to the date of agreement in her favor. There was no occasion to mention either of these in the letters' to the authorities if a person is writing in a natural way.

(22) Ninethly, the purchase of the stamp paper of Rs. 1.50 on 25-2-72 by the vendor is not free from doubt. He also purchased a stamp paper of Rs. 100. For what purpose these two stamp papers were purchased remains in obscurity. Whether he purchased the stamp paper of Rs. 1.50 on 25-2-75 or not, one thing is quite clear. On that date no agreement was executed. This agreement is a fictitious document which saw the light of the day only on 18-5-72 when the vendor disclosed to the purchaser that he has a sister who has agreed to purchase the property from him and because he, the purchaser, is not prepared to pay the sale price without the registration of the document he will now go back to his sister and convey the property to her for Rs. 90,000 even though he may have to suffer a considerable loss.

(23) On the whole facts and the attendant circumstances I have come to the conclusion, in agreement with the learned judge, that the agreement dated 25-2-72 is a sham document, a camouflage, created with the object to defeat the claim of an honest purchaser. The vendor when he appeared in the witness box was subjected to severe cross-examination. His evidence is full of lies and falsehoods, understatements and mis-statements. It is worthless. If worthless is a strong word it is not much too strong in his case. Similarly the evidence of the sister has not inspired any confidence either in the learned single Judge or in us. I am of the view that the agreement dated 25-2-72 must be condemned as a spurious document.

(24) Now I turn to the case of the vendor and the reasons he has given us for not completing the sale in favor of the purchaser. It must be remembered that the vendor executed the sale deed on 3-5-72 in favor of the purchaser which was on grossed on a stamp paper of Rs. 10,800. But after signing the sale deed the vendor was not prepared to have the sale deed registered. So the sale remained incomplete. The purchaser was compelled to file the suit. The only question is : Was there a good reason for the vendor to repudiate the transaction The purchaser requested for the registration of the sale deed. It was not disputed before the learned judge nor before us that the: purchaser was ready and willing to pay the balance sale price and that he bad sufficient funds in India with him. The vendor did not dispute that he entered into an agreement with the purchaser on 29-4-72 and in furtherance thereof he executed the sale deed on a stamp paper on 3-5-72 in his favor. Every page of it he signed. But in his evidence the vendor was prepared to go to any lengths. He even went to the length of saying that when the broker approached him on 3-5-72 for obtaining his signatures on the sale deed he signed on blank papers on which nothing was written. But the fact remains that the vendor did execute the sale deed in favor of the purchaser on 3-5-72 which was engrossed on a stamp paper of Rs. 10,800. After that he took no steps to complete the sale. He did not go to the Sub-Registrar's office though the broker requested him time and again. He went on putting them off again and again. In fact he addressed two letters to the purchaser, one on 9-5-72 and the another on 18.5.72. The contents of both the letters are the same except that the letter of 18-5-72 sent by registered A.D. post also contained a cheque of Rs. 20,000 by means of which the vendor sought to return the part of the purchase price which he had already received.

(25) The defense of the vendor is that the purchaser had agreed to pay the balance of the entire sale price before the registration of the sale deed because he was in dire need of money. He wrote to the purchaser in the letter dated 18-5-72 that he had 'betrayed' him and that the agreement stands 'frustrated'. This defense is false on its face. The purchaser was requesting the vendor to accept the balance price on the registration of the sale deed. What was the hitch in getting the sale deed registered None. The only thing that the vendor had to do was to obtain an income tax clearance certificate. This was for him the easiest thing to do. It is in evidence that as early as 7-3-72 the vendor cleared the income tax dues. This is his own statement in court. When it came to the completion of the sale in favor of the sister he obtained the certificate in no time. On 1-8-1972 he applied for it. On 2-8-1972 he obtained it. On 3-8-1972 he went to the Sub-Registrar and completed the sale in favor of the sister. This action of the vendor speaks volumes against him.

(26) I cannot accept the case of the vendor that the purchaser had agreed to pay the balance price before the registration of the sale deed. No reasonable man would agree to this. If the vendor was badly in need of money he could have done the same with the purchaser as he did with his sister. But it appears that he wanted to resile from the transaction. In the letter dated 18-5-72 the vendor said that the purchaser had agreed to pay to him the balance amount before the registration of the sale deed in case it could not be effected earlier by unavoidable circumstances or delay on the part of the income tax or house tax authorities. But in the. written statement it was said that the purchaser had agreed to overlook the house completion certificate only. So this was never the term of the oral agreement between the parties that without obtaining the income tax clearance certificate the purchaser will make full payment of the sale price. From the evidence it appears that the purchaser was willing to forego a completion certificate from the Municipal Corporation. But he never promised to pay the balance sale price without the registration of the sale deed. Nor does it appear to me that there was any hitch in obtaining the income tax clearance certificate and getting the sale registered without loss of time when the purchaser was willing to complete the sale and ready to pay the money.

(27) In my opinion the entire case can be disposed of on the short ground of lis pendens. But I have also considered other arguments raised by counsel for the parties as they were raised before the learned single judge also.

(28) One other argument of counsel for the sister was that the purchaser is not entitled to a decree for specific performance because he has added the name of one more witness to the agreement of sale after execution. Assuming this to be so, the legal rights and liabilities of the parties embodied in the agreement of sale were not varied or altered in any manner. The name of this additional witness is inconsequential. He was not produced in evidence. Nothing turns on him. The principal reason is that in the case of the purchaser the agreement of sale was acted upon and the vendor executed the sale deed also in pursuance of the agreement on a stamp paper. All that remained was the registration of the sale deed. The money the purchaser was willing to pay. This clearly shows that the vendor backed out of the transaction. He is guilty of the breach of contract. I see no good reason why a decree of specific performance should not be passed in his favor. I have already held that the sale in favor of the sister will not affect the rights of the purchaser.

(29) Mr. Madan Bhatia, learned counsel for the sister, tried to argue issues which were not pressed at the trial. For example, We did not allow him to contend' that the purchaser was a foreigner and was not entitled to acquire property in India.

(30) What should be the frame of the decree This question seems to have troubled the learned judge. He passed a decree for specific performance in favor of the purchaser. He held that he will also be entitled to actual physical possession of the second floor of the property. He directed the sister 'to join in the conveyance so as to pass the title,residing in her to the purchaser.' He ordered the purchaser to deposit the balance consideration in court after deducting the amount of Rs. 10,8001- from it on account of damages. He then went on to order in the ultimate paragraph of his judgment that the balance of the consideration shall be withdrawn by the vendor only 'with the concurrence' of the sister. 'This', he said, 'would enable them to settle their accounts inter se if any part of the consideration passed between the defendants. If defendant No. 2 (sister) withholds concurrence the disposal of the deposit would abide by any judicial determination of the rights and obligations of the defendants arising out of the transaction of sale entered into between them.' I cannot agree to this form of the decree. The learned judge, with great respect to him. has not appreciated the true nature and effect of the doctrine of lis pendens and its exact parameter. The transferee, the sister in this case, is bound by the decision in the suit. Story in his Equity Jurisprudence says, in a passage that is frequently quoted by the courts in India, that the effect of the doctrine is not annul the conveyance but only to render it subservient to the rights of the parties to the litigation. Section 52 of the Transfer of Property Act however does not make the transaction void. It merely makes any right created by it inoperative against the party to the suit. (Mulla Transfer of Property Act 6th ed p. 250. See also Nagubai v. B. Shama Rao, : [1956]1SCR451 ). To use the words of the section the sale in favor of the sister will not 'affect' the rights' of the purchaser under the decree. Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. (Kedar Nath v. Sheonarain, : [1970]2SCR204 ). If the rights of the purchaser under the decree are not affected by the sale pendente lite in favor of the sister we must hold that her concurrence is not required for any purpose. Neither for the execution of the sale deed. Nor for the withdrawal of the consideration by the vendor. The theory of concurrence is unknown to law and is simply unworkable.

(31) The doctrine of lis pendens stands on its own feet. It does not require consent of the transferee. The sister purchased the property at her peril from a party to the suit. Once a Court las taken cognizance of acontroversy, it is impossiblebeleftfor any of the parties to interfere with consummation of the judgment by any pendente lite transfer. The sister is bound by the decree that we pass against the vendor from whom she derives her title. The conveyance in her favor will be treated as if it never had . any existence. It is immaterial whether the alienee pendente lite had or had not notice of the pending proceedings. Nor is it necessary that the alienee must be a party to the suit, though in this case the sister was added as a party to the suit. So she is bound by the decree. Her consent or concurrence is not required. She stands in no better position than the vendor. Nor title must stand or fall with his. The fate of the transferee pendente lite depends on the fate of his transferor. He sinks and swims with him. If we lay down the condition of concurrence, as the learned fudge has done, we incur the risk of pushing the doctrine beyond its legitimate limits.

(32) The sale in favor of the purchaser is not affected in any manner by the sale pendente lite in favor of the sister. She gets the property only if the purchaser fails in the suit. But if the purchaser gets the decree of specific performance, as here, she takes nothing under the sale in her favor. This will be the right thing to hold.

(33) An application for additional evidence under Order 41 rule 27, Civil Procedure Code was made to us on behalf of the sister. I reject it on the short ground that no amount of evidence will help her because her transaction is hit by section 52, T.P. Act. Our decision will bind not only the parties to the suit but also transferees pendente lite from them.

(34) To sum up. The real point is that the sister, acquired the character of a transferee on the execution of the sale deed in August, 1972. At that time the suit was pending which the purchaser had brought in July 1972. So the doctrine of lis pendens applies. That at that time the sister had not been added as a defendant to the suit is of no consequence. The doctrine applies on the grounds of public policy to all those who derive their title from the parties to the suit. Title to the property in question was in litigation, and that if the sister purchased the defendant's claim to the same she was in danger of being bound by an adverse judgment. Under section 52, T.P. Act there is a jurisdiction, power or control which courts acquire over property in suit pending action and until final judgment where there is a dispute as to the title.

(35) The learned judge found that the alleged agreement dated 25-2-1972 was a 'facade' and had 'no factual existence'. I agree with him. So under the prior agreement alleged to have been concluded at an anterior date the sister gets no rights.

(36) The sister being out of the way, so far as the vendor is concerned he has no worthwhile defense to the suit. His main pillar of defense is gone. Having once executed the sale deed in favor of the purchaser he cannot resile from the transaction. He must be compelled to complete the sale. I hold that he was guilty of breach of contract. The purchaser is entitled to specific performance. The purchase price he was always ready and willing to pay. I have come to the conclusion that the condition of 'concurrence' of the sister as laid down by the learned judge is not only illegal but also illogical. Having held that the agreement dated 25-2-1972 was a 'facade', a mere mask worn by the colluding parties to confound the purchaser, it will be unjust to give leverage to the sister by requiring her 'concurrence' to the sale deed that payment of price to the vendor. That will be in a way effectuating the sinister purpose which was common to the vendor and his sister.

(37) For these reasons the appeal is dismissed. The decree of the learned single judge is modified. I pass a decree of specific performance and damages in favor of Sardar Narotam Singh, respondent against Joginder Singh Bedi, appellant, with costs throughout.

(38) Narotam Singh, purchaser, will also be entitled to the physical possession of the barsati floor as per the agreement. But during the pendency of the suit both the floors, that is, first floor and the ground floor fell vacant as is clear from the statement of Nirmal Jyot dated 11-1-1980. Now she was admittedly in possession of first floor. Ground floor was let out to one Mr. Mehta, tenant. He is not before us. We will not, thereforee, say anything about the delivery of vacant possession as regards the ground floor. That will be the subject matter of appropriate proceedings. So far as the first floor is concerned the purchaser is entitled to its vacant possession. The reason is that if the vendor or his transferee has dealt with the possession of the property in any manner during the pendency of the litigation, that dealing will also be subject to the doctrine of lis pendens. This means that if any portion falls vacant during the pendency of the litigation it will ensure to the benefit of the purchaser. The sale deed will be executed within six weeks of the deposit of the balance sale consideration by Nirmal Singh. If Bedi does not execute the sale deed the Registrar of the Court will execute on behalf of the vendor. The claim of-Narotam Singh for damages is also decreed. He will be entitled to deduct the said amount of Rs. 10,800 out of the balance sale price. The deposit will be made within four weeks.

(39) The sister Nirmal Jyot (the Cros's-Objector) is left to pursue her remedies against the vendor, Joginder Singh Bedi, as was dome in Kirpal Singh v. Kartaro, . Since Bellamy v. Sabine (supra) decided in 1857 it is well established that the equities between the transferor and the transferee pending litigation must be left to be decided in a future suit. (See 44E.R. 842 at p. 849). The cross-objections are dismissed with costs.

(40) A copy of this judgment be sent to the Sub-Registrar, New Delhi who will make an endorsement on the sale deed dated 3-8-1972 (Document registered on 3-8-1972 executed by Joginder Singh Bedi in favor of Nirmal Jyot regarding sale of House No. A-67, South Extension, Part I, New Delhi) that the said sale deed has become inoperative by reason of our judgment. I agree.


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