Supreme Court of India
SHINGARA SINGHversusDALJIT SINGH & ANR
- Citation
- 2024 INSC 770
- Decided
- 14 October 2024
- Disposal
- Dismissed
- Bench
- HRISHIKESH ROY
Holding
A sale of suit property made during the pendency of a suit is barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, rendering the purchaser not a bona‑fide purchaser, and the High Court’s decree for specific performance is correct.
Summary
Daljit Singh filed a suit on 24‑12‑1992 seeking specific performance of an agreement to sell dated 17‑08‑1990. While the suit was pending, Janraj Singh (defendant No.1) executed a sale deed on 08‑01‑1993 in favour of Shingara Singh (defendant No.2/appellant). The Trial Court dismissed the specific‑performance claim but ordered a refund of Rs 40,000; the First Appellate Court upheld this and held the original agreement collusive, rejecting the applicability of lis pendens. The High Court held that the sale deed was barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act and that the appellant was not a bona‑fide purchaser, consequently granting specific performance. The Supreme Court affirmed the High Court’s view, stating that any alienation of suit property during pendency is subject to lis pendens irrespective of the purchaser’s knowledge, and dismissed the appeal.
Issues considered
- Whether the doctrine of lis pendens under Section 52 of the Transfer of Property Act applies to the sale deed executed during the pendency of the suit.
- Whether the appellant is a bona fide purchaser for valuable consideration.
- Whether the High Court erred in setting aside the trial and appellate courts' decree.
- Whether the absence of a cross‑appeal or cross‑objection precludes the appellate court from finding collusion.
Legislation cited
Subjects
Section 52 of Transfer of Property Act, 1882Doctrine of lis pendensSpecific performanceAgreement to sellSale deedFraud and collusionCross‑appealCross‑objectionBona fide purchaserPendency of suitSubsequent sale agreement
Judgment
[2024] 10 S.C.R. 901 : 2024 INSC 770
Shingara Singh
v.
Daljit Singh & Anr
(Civil Appeal No. 5919 of 2023)
14 October 2024
[Hrishikesh Roy and Prashant Kumar Mishra,* JJ.]
Issue for Consideration
Whether the High Court, under the impugned judgment, was
justified in holding that the sale deed executed by defendant
no. 1 in favour of defendant no.2/appellant was hit by doctrine
of lis pendens and that defendant no.2/appellant is not a bona
fide purchaser.
Headnotes†
Transfer of Property Act, 1882 – s.52 – Applicability of doctrine
of lis pendens – Plaintiff filed a suit on 24.12.1992 seeking
specific performance of agreement to sell dated 17.08.1990 in
respect of the suit land – During the pendency of the suit, the
present appellant/defendant no. 2 was impleaded on 25.01.1993
on the basis that defendant no. 1 executed a sale deed in his
favour on 08.01.1993 in respect of the suit land on the basis
of alleged agreement to sell dated 19.11.1990 – Trial Court
dismissed the suit in respect of the specific performance but
allowed the alternative prayer for recovery of Rs. 40,000/- with
interest – First Appellate Court maintained the Trial Court’s
judgment – However, the High Court opined that the sale deed
executed by defendant no. 1 in favour of defendant no. 2/
appellant was hit by doctrine of lis pendens and that defendant
no. 2/appellant is not a bona fide purchaser – High Court
passed a decree of specific performance – Justified or not:
Held: In the instant case, it is an admitted position that the
suit was filed on 24.12.1992 and the sale deed was executed
on 08.01.1993 by defendant no. 1 in favour of defendant
no. 2/appellant during pendency of the suit – The doctrine of lis
pendens as contained in Section 52 of the Transfer of Property Act,
1882 applies to a transaction during pendency of the suit – The
Trial Court found execution of agreement to be proved and directed
* Author
902 [2024] 10 S.C.R.
Digital Supreme Court Reports
for refund of the amount of Rs. 40,000/- by defendant no. 1 to the
plaintiff with further finding that the agreement dated 17.08.1990
was not a result of fraud and collusion – The defendant did not
prefer any cross-appeal or cross-objections against the said partial
decree and allowed the finding to become final – The plaintiff was
non-suited only on the ground that defendant no. 2 had no notice
of the agreement and is a bona fide purchaser – However, once
sale agreement is proved and the subsequent sale was during
pendency of the suit hit by the doctrine of lis pendens, the High
Court was fully justified in setting aside the judgment and decree of
the Trial Court and the First Appellate Court and passing a decree
for specific performance – Thus, no error was committed by the
High Court in rendering the judgment impugned. [Paras 15, 16]
Case Law Cited
Banarsi v. Ram Phal [2003] 2 SCR 22 : (2003) 9 SCC 606; Usha
Sinha v. Dina Ram [2008] 4 SCR 1192 : (2008) 7 SCC 144;
Sanjay Verma v. Manik Roy [2006] Supp. 10 SCR 469 : (2006)
13 SCC 608; Guruswamy Nadar v. P. Lakshmi Ammal [2008] 7
SCR 435 : (2008) 5 SCC 796; Chander Bhan (D) Through LR
Sher Singh v. Mukhtiar Singh & Ors. [2024] 5 SCR 1148 : 2024
INSC 377 – relied on.
List of Acts
Transfer of Property Act, 1882.
List of Keywords
Section 52 of Transfer of Property Act, 1882; Doctrine of lis pendens;
Specific Performance; Agreement to sell; Sale deed; Fraud and
collusion; Cross-Appeal; Cross Objection; bona fide Purchaser;
Pendency of Suit; Subsequent sale agreement.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5919 of 2023
From the Judgment and Order dated 06.04.2018 of the High Court of
Punjab & Haryana at Chandigarh in RSA No. 4466 of 2010
Appearances for Parties
Harin P. Rawal, Sr. Adv., Abhishek Atrey, Sudhir Walia, Ms. Niharika
Ahluwalia, Arpit Sharma, Dr. Abhishek Atrey, Ms. Shreya Bansal,
[2024] 10 S.C.R. 903
Shingara Singh v. Daljit Singh & Anr.
Kartikeya Kanojiya, Ms. Shrestha Narayan, Ms. Urmi H. Raval,
Advs. for the Appellant.
Manoj Swarup, Sr. Adv., P. N. Puri, Mrs. Reeta Dewan Puri,
Ms. Smiriti Puri, Neelmani Pant, Ms. Apoorva Singh, Manish Dhingra,
Ravinder Pratap Singh, J. S. Marahatta, Aakash Bhan, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Prashant Kumar Mishra, J.
1. The defendant No. 2 in the suit has preferred this appeal challenging
the judgment and decree passed by the High Court allowing the
appeal preferred by the plaintiff/Daljit Singh to set aside the judgment
and decree of the Trial Court and the First Appellate Court which
concurrently decreed the suit partially only for the alternative relief of
recovery of Rs. 40,000/- along with interest while dismissing the suit
in respect of specific performance of the agreement dated 17.08.1990.
2. The facts of the case emerging from the pleadings of the parties are
that plaintiff/Daljit Singh instituted the suit on 24.12.1992 claiming
specific performance of the agreement to sell dated 17.08.1990 in
respect of the land measuring 79 Kanals 09 marlas @ of Rs. 80,000/-
per acre against the payment of earnest money of Rs. 40,000/- and
the balance amount of Rs. 7,54,000/- at the time of execution and
registration of the sale deed on or before 30.11.1992.
3. According to the plaintiff, he remained present in the office of the
Sub-Registrar on 30.11.1992 with the balance sale consideration
and all the expenses for stamp papers but defendant no. 1 did not
turn up to perform his part of the agreement. The plaintiff marked his
presence by submitting an affidavit before the Executive Magistrate.
The suit was preferred within 23 days as stipulated in the agreement.
Defendant no. 1 initially denied the execution of the agreement to
sell, much less, receipt of the earnest money with further averment
that the subject land was a Joint Hindu Family property. During the
pendency of the suit, the present appellant/defendant no. 2/Shingrara
Singh was impleaded on 25.01.1993 on the basis that defendant
no. 1/ Janraj Singh executed a sale deed in his favour on 08.01.1993
in respect of the suit land on the basis of alleged agreement to sell
904 [2024] 10 S.C.R.
Digital Supreme Court Reports
dated 19.11.1990 for a sum of Rs. 6,45,937.50. It is to be noted that
the Trial Court passed an order of status quo on 24.12.1992 qua
alienation with regard to the share of defendant no. 1.
4. Defendant No. 2/appellant filed his separate written statement stating
that defendant no. 1 has sold the property to him by executing a
registered sale deed on 08.01.1993 and delivered possession after
which mutation has also been carried out. According to the appellant/
defendant no. 2, the agreement, basing which the suit is filed, is a
fabricated ante-dated document because defendant no. 1 did not
disclose the factum of this agreement while executing the sale deed
in his favour and thus, the appellant/defendant no. 2 is a bona fide
purchaser.
5. In the Trial Court plaintiff examined himself as PW-2, Deed Writer/
Kulwant Singh as PW-1, Jasjit Singh as PW-3 whereas defendants
examined Kirpan Singh as DW 1, Shangara Singh as DW 2, B.M.
Sehgal as DW 3 and Subhash Chander as DW 4. The Trial Court
vide its judgment dated 27.04.2007 held that the plaintiff has proved
the agreement to sell wherein defendant no. 2 has failed to prove
that the agreement is a result of fraud and fabricated document.
However, the Trial Court denied the decree for specific performance
on the ground that since defendant no. 2 is the owner in possession
of the suit land upon execution of the sale deed dated 08.01.1993,
defendant no. 1 has left with no right or title of the suit land. Thus,
he is unable to execute the sale deed in favour of the plaintiff and
moreover the plaintiff and defendant no. 1 are close relative. The
Trial Court also held that the plaintiff was ready and willing to perform
his part of the contract. It was also held that defendant no. 2 is a
bona fide purchaser as he was not having any knowledge about the
agreement to sell between the plaintiff and defendant no. 1. The
Trial Court eventually dismissed the suit in respect of the specific
performance but allowed the alternative prayer for recovery of
Rs. 40,000/- with interest @ 12% per annum.
6. The First Appellate Court maintained the Trial Court’s judgment and
decree by holding that the subject sale agreement is a result of fraud
and collusion between the plaintiff and defendant no. 1. The First
Appellate Court observed that in his first written statement he denied
the execution of the agreement but subsequently after amendment
in the plaint and impleadment of the appellant, he admitted the claim
[2024] 10 S.C.R. 905
Shingara Singh v. Daljit Singh & Anr.
of the plaintiff. The First Appellate Court further observed that the
doctrine of lis pendens is not applicable in the facts of the present
case.
7. The High Court, under the impugned judgment in this appeal, opined
that the sale deed executed by defendant no. 1 in favour of defendant
no. 2/appellant is hit by doctrine of lis pendens and that defendant
no. 2/appellant is not a bona fide purchaser. The High Court noted
that the suit was filed on 24.12.1992 and the next date before the Trial
Court was fixed on 12.01.1993. However, the sale deed was executed
by defendant no. 1 in favour of defendant no. 2 on 08.01.1993. Both
defendant no. 1 and defendant no. 2 being the residents of same
village, it is unbelievable that he was not having the knowledge of
the agreement, for, the sale deed in favour of defendant no. 2 was
for a lesser amount than the subject agreement. The agreement was
for a sale consideration of Rs. 7,94,000/- whereas the sale deed was
for Rs. 6,45,937.50. It is also held that mere relationship between
the plaintiff and defendant no. 1 would not be a ground to deny the
discretionary relief and moreover, when both the courts below have
found that the plaintiff was always ready and willing to perform his
part of the contract.
8. Mr. Hrin P. Raval, learned senior counsel appearing for the appellant
argued that the High Court ought not to have disturbed the concurrent
judgment and order passed by the Trial Court and the Appellate Court.
On the other hand, Mr. Manoj Swarup, learned senior counsel
appearing on behalf of the respondents argued that the judgment
and order passed by the Trial Court and the Appellate Court being
based on perverse findings and reasoning, the High Court has rightly
set aside the same for decreeing the plaintiff’s suit in respect of
specific performance. According to him, the High Court has rightly
applied the doctrine of lis pendens.
9. Before proceeding to deal with the applicability of doctrine of lis
pendens, it is significant to note that Issue no. 5 framed by the Trial
Court was to the effect as to whether the agreement dated 17.08.1990
is a result of fraud and collusion, therefore, not binding on defendant
no. 1. This issue was decided against the defendant. When the plaintiff
preferred first appeal, the defendant did not move any cross-appeal
or cross-objections, yet the first Appellate Court entered into this
aspect of the matter to hold that the subject agreement was collusive
906 [2024] 10 S.C.R.
Digital Supreme Court Reports
between the plaintiff and defendant no. 1. This is not permissible in
view of the law laid down by this Court in Banarsi vs. Ram Phal1
wherein this Court held thus in paras 10 & 11:
“10. The CPC amendment of 1976 has not materially
or substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer any
cross-objection. However, the insertion made in the text of
sub-rule (1) makes it permissible to file a cross-objection
against a finding. The difference which has resulted we
will shortly state. A respondent may defend himself without
filing any cross-objection to the extent to which decree is
in his favour; however, if he proposes to attack any part of
the decree, he must take cross-objection. The amendment
inserted by the 1976 amendment is clarificatory and also
enabling and this may be made precise by analysing the
provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant
and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and
all the issues have also been answered in favour of the
respondent but there is a finding in the judgment which
goes against the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross-objection against
that part of the decree which is against him if he seeks to
get rid of the same though that part of the decree which
is in his favour he is entitled to support without taking any
cross-objection. The law remains so post-amendment
too. In the type of cases (ii) and (iii) pre-amendment
CPC did not entitle nor permit the respondent to take any
cross-objection as he was not the person aggrieved by
1 [2003] 2 SCR 22 : (2003) 9 SCC 606
[2024] 10 S.C.R. 907
Shingara Singh v. Daljit Singh & Anr.
the decree. Under the amended CPC, read in the light
of the explanation, though it is still not necessary for the
respondent to take any cross-objection laying challenge
to any finding adverse to him as the decree is entirely
in his favour and he may support the decree without
cross-objection; the amendment made in the text of
sub-rule (1), read with the explanation newly inserted, gives
him a right to take cross-objection to a finding recorded
against him either while answering an issue or while
dealing with an issue. The advantage of preferring such
cross-objection is spelled out by sub-rule (4). In spite of
the original appeal having been withdrawn or dismissed
for default the cross-objection taken to any finding by the
respondent shall still be available to be adjudicated upon on
merits which remedy was not available to the respondent
under the unamended CPC. In the pre-amendment era, the
withdrawal or dismissal for default of the original appeal
disabled the respondent to question the correctness or
otherwise of any finding recorded against the respondent.”
10. In the case at hand, the Trial Court had partly decreed the suit to the
extent of recovery of Rs. 40,000/-. This part of the decree was not
challenged by the defendants either by filing a separate appeal or
by way of cross objections. They did not prefer any cross objection
challenging the finding on issue no. 5. In this situation the defendants
have conceded to the decree for refund and finding on issue no. 5.
Therefore, in absence of cross-appeal or cross-objections by the
defendants, the First Appellate Court could not have recorded a
finding that the subject agreement was a result of collusion between
the plaintiff and defendant no. 1.
11. In Usha Sinha vs. Dina Ram2 this Court held that the doctrine of
lis pendens applies to an alienation during the pendency of the
suit whether such alienees had or had no notice of the pending
proceedings. The following has been held I paras 18 & 23:
“18. Before one-and-half century, in Bellamy v. Sabine
[(1857) 1 De G & J 566 : 44 ER 842], Lord Cranworth,
L.C. proclaimed that where a litigation is pending between
2 [2008] 4 SCR 1192 : (2008) 7 SCC 144
908 [2024] 10 S.C.R.
Digital Supreme Court Reports
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
litigating parties, but also on those who derive title under
them by alienations made pending the suit, whether such
alienees had or had not notice of the pending proceedings.
If this were not so, there could be no certainty that the
litigation would ever come to an end.
23. It is thus settled law that a purchaser of suit property
during the pendency of litigation has no right to resist
or obstruct execution of decree passed by a competent
court. The doctrine of “lis pendens” prohibits a party from
dealing with the property which is the subject-matter of
suit. “Lis pendens” itself is treated as constructive notice
to a purchaser that he is bound by a decree to be entered
in the pending suit. Rule 102, therefore, clarifies that there
should not be resistance or obstruction by a transferee
pendente lite. It declares that if the resistance is caused
or obstruction is offered by a transferee pendente lite of
the judgment-debtor, he cannot seek benefit of Rules 98
or 100 of Order 21.”
12. This Court in Sanjay Verma vs. Manik Roy3 was dealing with a suit
for specific performance. During pendency of the suit, a temporary
injunction was granted in favour of the plaintiff and different portions
of the suit land were sold whereafter the purchasers applied for
impleadment, which was rejected by the Trial Court but allowed by
the High Court against which special leave to appeal was filed. In
the above background, this Court observed the following in para 12:
“12. The principles specified in Section 52 of the TP Act
are in accordance with equity, good conscience or justice
because they rest upon an equitable and just foundation
that it will be impossible to bring an action or suit to a
successful termination if alienations are permitted to prevail.
A transferee pendente lite is bound by the decree just as
much as he was a party to the suit. The principle of lis
pendens embodied in Section 52 of the TP Act being a
3 [2006] Supp. 10 SCR 469 : (2006) 13 SCC 608
[2024] 10 S.C.R. 909
Shingara Singh v. Daljit Singh & Anr.
principle of public policy, no question of good faith or bona
fide arises. The principle underlying Section 52 is that a
litigating party is exempted from taking notice of a title
acquired during the pendency of the litigation. The mere
pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of
the suit. The section only postulates a condition that the
alienation will in no manner affect the rights of the other
party under any decree which may be passed in the suit
unless the property was alienated with the permission of
the court.”
13. Guruswamy Nadar vs. P. Lakshmi Ammal4 also arose out of a suit
for specific performance of agreement wherein this Court considered
the effect of subsequent sale of properties by owner (proposed
vendor) in favour of a third party. In the above facts, this Court held
thus in paras 9 & 15:
“9. Section 19 of the Specific Relief Act clearly says
subsequent sale can be enforced for good and sufficient
reason but in the present case, there is no difficulty because
the suit was filed on 3-5-1975 for specific performance of
the agreement and the second sale took place on 5-5-1975.
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 Section 19 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 overriding effect on the first sale.
15. So far as the present case is concerned, it is apparent
that the appellant who is a subsequent purchaser of the
same property, has purchased in good faith but the principle
of lis pendens will certainly be applicable to the present
case notwithstanding the fact that under Section 19(b)
of the Specific Relief Act his rights could be protected.”
4 [2008] 7 SCR 435 : (2008) 5 SCC 796
910 [2024] 10 S.C.R.
Digital Supreme Court Reports
14. In a recent judgment of this Court in Chander Bhan (D) through
Lr. Sher Singh vs. Mukhtiar Singh & Ors.5 it is observed, “once
it has been held that the transactions executed by the respondents
are illegal due to the doctrine of lis pendens the defence of the
respondents 1 – 2 that they are bona fide purchasers for valuable
consideration and thus, entitled to protection under Section 41 of
the Transfer of Property Act, 1882 is liable to be rejected.”
15. In the case in hand also, it is an admitted position that the suit was
filed on 24.12.1992 and the sale deed was executed on 08.01.1993 by
defendant no. 1 in favour of defendant no. 2/appellant during pendency
of the suit. The doctrine of lis pendens as contained in Section 52
of the Transfer of Property Act, 1882 applies to a transaction during
pendency of the suit. The Trial Court found execution of agreement
to be proved and directed for refund of the amount of Rs. 40,000/- by
defendant no. 1 to the plaintiff/appellant with further finding on issue
no. 5 that the agreement was not a result of fraud and collusion.
The defendant did not prefer any cross-appeal or cross-objections
against the said partial decree and allowed the finding to become
final. The plaintiff was non-suited only on the ground that defendant
no. 2 had no notice of the agreement and is a bona fide purchaser.
However, once sale agreement is proved and the subsequent sale
was during pendency of the suit hit by the doctrine of lis pendens,
the High Court was fully justified in setting aside the judgment and
decree of the Trial Court and the First Appellate Court and passing
a decree for specific performance.
16. In our considered view, the High Court has not committed any error
of law in rendering the judgment impugned which is hereby affirmed
and the instant appeal deserves to be and is hereby dismissed. No
order as to costs.
Result of the case: Appeal dismissed
†
Headnotes prepared by: Ankit Gyan
5 [2024] 5 SCR 1148 : 2024 INSC 377
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