In the Court of Bombay High Court (1907) 9 BOMLR 656 Petitioner Faiyaz Husain Khan Respondent Munshi Prag Narain Date of Judgement 21 March 1907 Bench Honorable Justice Macnaghten; Honorable Justice Davey; Honorable Justice Andrew Scoble; Honorable Justice Arthur Wilson
From the time of the British era, various laws were governed in India for the transactions pertaining to land and property. Though the Britishers ruled India for nearly 200 years, they gave an established model of the legislative and judicial mechanism. Their administrative framework relating to land and property still governs the law of property in India. There are various attributes and terminology used in property dealing laws Eg. sale of property, possession, mortgage, sale certificate, etc there is an end number of terms which are used and in the same manner court practices such terms in pronouncing the judgment. By mere obtaining the sale certificate on paying sum or getting registered in the registrar does not resolve the dispute, the condition attached is whether such property is free form encumbrance or encroachment or has any past complexity.
Background of Study:
The enigma of Bombay High Court was that the above case involved a substantial question of law leaving that, the facts were not in dispute, where leave to appeal was accepted of Mr. Fayaz Husain-appellant. Previous to that the Judicial Commissioner of Oudh outright rejected the appeal of the appellant by affirming the judgment of Subordinate Judge of Sitapur.
Constitution and Statutory Provisions:
- Section 52 of the Transfer of Property Act, 1882
Fact/s and Procedural History:
Mr. Hamid Husain, the owner of Mauza Bangawan mortgaged his property to Mr. Newal Kishore in the year 1889, where the title was clear and free from all encumbrance. Later, on non-payment of money to Mr. Newal Kishore, who was the mortgagor, filed a suit against the mortgaged property on 13th July 1891. Where further, on that instituted suit, Mr. Newal Kishore obtained the decree for sale of the said mortgaged property in the year 1892 and the same was made absolute in the year 1895. Mr. Prag Narian S/o Mr. Newal Kishore who was also the representative of that suit purchased that property from Newal Kishore for the execution of the sale purpose where the certificate was obtained by him in the year 1901.
Subsequently, the same property i.e Mauza Bangawan was mortgaged/pledged to another person named Mr. Mirza Muzaffar Beg by Mr. Hamid Husain on 15th July 1891, where the server of summons was still due of that prior case of Mr. Newal Kishore. Hamid Hussain failed again to repay the sum, resulting in Mirza Muzaffar beg to institute suit against him without making the first mortgagee a party and in the absence of the first mortgagee obtained a decree for sale. The property was executed later and purchased by Fayaz Husain S/o Hamid Husain.
Mr. Parg Narian S/o Newal Kishore who holds the sale certificate tried every possible way to possess the property from Mr. Fayaz Husain but unfortunately declined to hand over the property in response to it Fayaz Husain filed a case against Mr. Parg, asking for a declaration that Newal Kishore’s mortgage and the decree passed upon it, were invalid and that the property shall not be held for attachment and sale. The case filed by Fayaz was declined by the subordinate judge of Sitapur where the same order was affirmed by Judicial Commissioner of Oudh ( Awadh). To this context, an appeal was filed in the courts of Bombay High Court which was allowed because there was a substantial question of law concerned.
- Interpretation of Section 52 of The Transfer of Property Act 1882.
- Applicability of term Lis Pendens as per Section 52 of The Transfer of Property Act.
- Can a transferor transfer or sell the property to another person when the suit is pending before the court?
Their lordship has pronounced the judgment in keeping section 52 of The Transfer Of Property Act, where the term “ Lis Pendens” how it has to be seen in a context where a suit is pending before the court. In the first instance, the lordships saw that the property was mortgaged to Mr. Mirza Muzzafar Beg during the pendency of Newal Kishore suit which was in its origin and nature a contentious suit and was at the time being actively prosecuted. Therefore as per section 52, it did not affect the rights of Newal Kishore under the decree made in his suit, in the second instance, their lordship observed that until and unless the summons is served to the opposite property the suit doesn’t remain contentious in its origin and nature and there might be malice involved in serving summons too. The lordships saw that the term ” Lis Pendens” applicability in pertaining to this case is minimal where it means a written notice that a lawsuit has been filled in concern with that property where anyone who wants to possess that disputed property shall not have the absolute right to possess, in the leading case Bellamy v. Sabine, [i] L.J Turner observed that “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 equity and rests upon this foundation, that it would be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail.” which means that it will only cease or terminate the case as whole but what about the alienations and rights of the party to suit. Where in the same case i.e Bellamy v. Sabine [ii] Cranworth L.C. observed in the same case, is that “pendente lite neither party to the litigation can alienate the property in dispute to affect his opponent.”where it is clearly said that neither party to the litigation can alienate the property, automatically it will extinguish the sale made subsequently in the second stance with all the transaction uncontested.
With the two views of L. J Turner and L.C Carnwath, the court has observed that the suit of Newal Kishore was pending before the court and during that period of time, Hamid Husain and his son Fayaz Husain played a foul play by mortgaging the disputed property to Mirza Muzzafar Beg and further executed sale in the name of Fayaz Hussain. The court also scrutinized that Mr. Fayaz knows the fact that the property is in dispute with Newal Kishore and the sale shall be executed in favor of his Son Parg Narain and he will be benefited from this sale. To counter this, Fayaz filed a case against Mr. Parg Narian to disengage with the former suit where the application was dismissed in the subordinate Court later applied to Judicial Commissioner for letting in to redeem but again it was dismissed. Therefore the court is in the opinion that the application put forth by the appellant shall stand dismissed and the cost shall be born by him of appeal.
Applicability and relevancy:
The benefit of the doctrine of Lis Pendens cannot be availed by the transferor and it is intended for the protection of the other party as observed in the case Rabindranath v. Sarat Chandra.[iii]Before applying the Lis Pendens rule factum must be taken into consideration and the gravity of the case.
The judgment pronounced by the Bombay High court fits with the law and applies to this above leading case. Certain things that are to be acknowledged in a property case or possession matter is that the evidence that you produce before the court, what certificates and what testimony one gives before the court. Contracts and agreements signed between the parties is also a vital part. This leading case only gives the correctness of the applicability of the term Lis Pendens. Evidence Under the Indian Evidence Act,1872 is most important to justify the statements recorded during chief and cross-examination where you may find the mala fide intentions of either of the parties. It has been a decade when this case was decided so it might be possible that certain things might have vanished from the records but in today’s date documentary evidence plays an important catalyst to decide the rights of the parties.
“The views of the authors are personal“
[i] Bellamy v. Sabine (1857) 1 De G. & J. 566, 584.
[iii] Rabindranath v. Sarat Chandra, A.I.R. 1971, Cal,159.