Prem Prakash, J. - (1.) DOUBTING the correctness of the decision of this Court in Ganga Charan v. Bans Bahadur Singh (AIR 1975 All 25) a learned Single Judge of this Court has made this referring order which posits the following: Whether Section 52 of the Transfer of Property Act is subject to 19 (b) of the New Specific Relief Act.
(2.) SECTION 19 (b) of the Act says that Specific performance of a contract may be enforced against (a) either party thereto; (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 good faith and without notice of the original contract. The Counsel appearing on behalf of the subsequent purchaser has contended that until the suit of earlier ' contractor' is decreed, the contract to sell and purchase between him and the vendor is nothing but an agreement which does not create any interest in immoveable property. The title to the property has validly passed from the vendor and resides in the subsequent transferee; the sale to the latter is not void but only voidable at the option of the " earlier contractor." It would, therefore, be illogical to direct the vendor in a suit brought for specific performance of contract by the prior contractor, to convey to him, by a decree which is ultimately passed in the suit of the prior contractor, the estate which by then has come to belong to the subsequent transferee and is not his. Reference was made to Durga Prasad v. Deep Chand (AIR 1954 SC 75) where their Lordships laying down the form of the decree which has to be adopted in such a suit observed (at page 81) : " In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff." On the other side, it has been maintained that there is no foundation for either proposition; for they seem to be in direct opposition to the established rule as the effect of the lis pendens and that brings us to S. 52 of the T. P. Act which embodies the doctrine known as the doctrine of lis pendens. The principle on which the doctrine rests was spoken by Cranworth L. C. in the leading case of Bellamy v. Sabine ((1857) 44 ER 842 at p. 843) as follows : " It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required 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 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."
(3.) THE Privy Council had adopted the same principle in Faiyaz Husain Khan v. Munshi Prag Narain ((1907) 34 Ind App 102) where they lay stress on the necessity for final adjudication and observation that otherwise there would be no end to litigation and justice would be defeated. Story in his work on Equity IIIrd Edition para 406 expounded the doctrine of lis pendens in the terms as follows :- " Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them." (emphasis supplied by us).;