1993 PLP 1646 (SCMR)

The learned Judge trying the suit held that the agreement to sell the property dated 6‑4‑1974 (Exh. 7/1) was validly executed and was binding on the parties. On the additional issue the finding recorded was as hereunder:‑‑ "It is an admitted position on record that the sale deed in favour of defendant 3 by defendant 2 has been executed on 17‑5‑1979. The execution of sale deed in favour of defendant 3, therefore, took place during the pendency of the present suit and during subsistence of an injunction order whereby defendant 2 was restrained from transferring the aforesaid property. In these circumstances the burden of showing, that defendant 3 is not bound to transfer the suit property in favour of the plaintiff was entirely on him. The defendant 3 has not led any evidence in this regard. The property having been acquired by defendant 3 during the pendency of the suit and on the face of existence of an Injunction interim order prohibiting defendant 2, from transferring suit property, the sale in favour of defendant 3 is hit by section 52 of the Transfer of Property Act. I, therefore, hold that defendants 1 to 3 are liable to convey the property in suit in favour of the plaintiff under the agreement of sale Exh.7/1)." The relief granted was in terms as hereunder:‑‑ "As a result of above discussion I am of the view that the plaintiff is entitled to conveyance of the suit property in his favour. The plaintiff has paid Rs.25,000 to defendant 1 at the time of execution of agreement of sale Exh.7/1 and he deposited the balance of the sale, consideration amounting to Rs.65,000 in Court. Out of this amount a sum of Rs.51,407.52 is to be paid to defendant 4 upon execution of a valid redemption deed of property and surrender of all original documents of title relating thereto to the Nazir of this Court. The balance amount of Rs.12,592.98 will be paid to defendant No.l upon completion of sale in favour of plaintiff. The sale deed will be executed by the defendant in favour of plaintiff within one month from today failing which Nazir of this Court will execute the same in accordance with the law. The plaintiff is also entitled to a decree for possession of the suit property against the defendants. The cost of resumption deed will be borne by defendants 2 and 3 jointly. It is however, clarified that the decree in the present suit will be no bar to any remedy which may be available to defendant 1 against defendants 2 and 3." 4.An Intra‑Court Appeal was filed but it was dismissed on 1‑12‑1987.

5. The learned counsel for the appellant has for his rights relied upon non‑observance by the plaintiff of the requirements of the Transfer of Property and the Registration (Sindh Amendment) Act, 1939 (Sindh Act XIV of 1939). According to him the restraint order passed against the owner cannot adversely affect his interests as he had no notice of it and was a bona fide purchaser for consideration.

6. Section 52 of the Transfer of Property Act and sections 18 and 17 of the Registration Act, after the amendment by Transfer of Property and the Registration (Sindh Amendment) Act, 1939 (Sindh Act No. XIV of 1939), read as hereunder:‑‑

"Section 52 of Transfer of Property Act: (1) During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specially in question, if a notice of the pendency of such suit or proceeding is registered under section 18 of the Registration Act 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. (2) Every notice of pendency of a suit or proceeding referred to in subsection (1) Shall contain the following particulars name (a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question; (b) the description of the immoveable property the right to which is in Question; (c) the Court in which the suit or proceeding is pending; (d) the nature and title of the suit or proceeding: and (e) the date on which the suit or proceeding was instituted." (The amendments made have been underlined). "Section 18 of the Registration Act: Any document not required to be registered under section 17 may also be registered under the Act". In section 17 of the Registration Act the following clause (cc) was inserted:‑‑

"notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882."

7. Admittedly no strict compliance with the requirements of the amended provision had taken place in the case. What was done pursuant to the requirement of this section was that a notice was addressed by the lawyer of the plaintiff in Suit No.462 of 1976, dated 20‑8‑1976 to the Registrar, as hereunder:‑‑ "Dear Sir I am counsel of plaintiff in the above‑noted suit and the Hon'ble High Court has been pleased to grant an ad interim injunction on 10‑18‑1976 prohibiting and restraining for the allocation, sale, mortgage or dis position of the property i.e. House NoA‑652, Block 'H', North Nazimabad, Karachi. Photocopy of the Order of High Court is attached. You are requested to kindly order the Sub‑Registrar, North Nazimabad to obey the orders of the High Court and till the defendants produce order vacating the stay." Notwithstanding the non‑compliance with the amended provisions, the plaintiff can avail of the provisions of Order XXII, Rule 10, C.P.C. whereby assignment pending litigation would be as much subject to decree against the main defendant assignee as against the owner assignor himself.

8. It is true that the injunction order passed against the assignor owner of the property would not strictly and legally bind the assignee if an alienation is made in breach of it. All the same, the relief under section 52 of the Transfer of Property Act being an equitable relief has to be obtained on the totality of the factors appearing on the record and not on the mere compliance or non compliance of the amended provisions of the two laws. That is the view taken by the High Court.

9. In the present case, the circumstances clearly show that the plaintiff/respondent had a prior interest in the property. He had gone to the Court earlier. His suit was pending. An injunction had been granted against the owner assignor and in that situation the appellant has stepped in to purchase the properly.

10. In the circumstances, we consider that the judgment of the High Court is unexceptionable and no relief can be granted to the appellant. This appeal fails and is dismissed with no order as to costs. AA./M‑1776/S Appeal dismissed