A
B
[2010] 14 (ADDL.) S.C.R. 560
T.G. ASHOK KUMAR
v.
GOVINDAMMAL AND ANR.
(Civil Appeal No.10325 of 2010)
DECEMBER 8, 2010
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Transfer of Property Act, 1882: s. 52 - Transfer of property
by a defendant pending a partition suit - Partition suit found
C to be not collusive - Decree in partition suit - In terms of
decree, the pendente lite transferor found to have only half
share in the property and she was allotted only one fourth of
the property purchased by the transferee - Suit by transferee
for declaration of title and permanent injunction in regard to
D transferred property- Courts below dismissed the suit - Held:
Suit ought not to have been dismissed in entirety even if the
sale was hit by the Doctrine of /is pendens - Transferee's title
will be saved in respect of that part of the transferred property
allotted to the transferor in the partition suit - Transfer in
E regard to the remaining portion of the transferred property to
which the transferor is found not entitled, will be invalid and
the transferee will not get any right, title or interest in that
portion.
Transfer of Property: Suggestion to Law makers -
F Absence of a mechanism for prospective purchasers to verify
whether a property is subject to any pending suit or a decree
or attachment cause lot of hardship, loss, anxiety and leads
to unnecessary litigation - All these inconveniences, risks
and misery could be avoided and the property litigations
G could be reduced to a considerable extent, if there is some
satisfactory anct reliable method by which a prospective
purchaser can ascertain whether any suit is pending (or
whether the property is subject to any decree or attachment)
H 560
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 561
before he decides to purchase the property - Law A
Commission and the Parliament much consider such
amendment or other suitable amendment to cover the
existing void in title verification or due diligence procedures
- Also, registration of agreements of sale should be made
compulsory to reduce property litigation - Registration Act, B
1908 - Legislation.
Appeal: Appeal before Supreme Court - Concurrent
findings of facts by the three courts below that the partition suit
·was not collusive - Interference with - Held: Not called for - C
Constitution of India, 1950 - Article 136.
The appellant filed a suit for declaration of his right.
and title and permanent injunction in regard to the suit
property. The case of the appellant was that he
purchased the suit property from the second respondent D
under sale deed dated 11.4.1990 and he was a bona
fide purchaser and was unaware of the partition suit
between the second respondent and the first
respondent who was the step daughter of the second
respondent. On 17.3.1994, the said suit for partition was E
decreed by preliminary decree whereby the two
respondents were held entitled to half share each in
the properties including the suit property. In the final
decree proceedings, the Commissioner divided the suit
property in such a manner that nearly three-fourth F
portion of the suit property was allotted to the share of
the first respondent and only about a one-fourth portion
was allotted to the share of the second respondent.
The first respondent resisted the suit contending
that the appellant had purchased the suit property G
during the pendency of her suit for partition; and that
being a purchaser pendente lite, the sale in his favour
was hit by the doctrine of /is pendens and, therefore,
he could not claim any right in the suit property; and
she denied that there was any collusion between her H
562 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A and the second respondent. The second respondent
did not contest the suit.
The trial court dismissed the suit on the ground
that the sale in favour of the appellant was hit by the
8 doctrine of /is pendens. The appeal filed by the appellant
was dismissed by the first appellate cot'.lrt. The High
Court dismissed the second appeal. Aggrieved, the
appellant filed the instant appeal.
c
Partly allowing the appeal, the Court
HELD: 1. The trial court, the first appellate court
and the High Court on appreciating the evidence have
held that the partition suit was not collusive and that
there was a valid reason for a larger portion of the suit
0 property being allotted to the first respondent, plaintiff
in the partition suit as the portion allotted to the second
respondent had a house therein and to equalize the
value, a larger portion (vacant plot) was allotted to the
first respondent. There is no reason to interfere on that
E score. [Para 8] [570-C-D]
Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569;
Hardev Singh v. Gurmail Singh (2007) 2 SCC 404. - relied
on.
F 2.1. The principle underlying Section 52 of the
Transfer of Property Act, 1882 is clear. During the
pendency in a court of competent jurisdiction of any
suit which is not collusive, in which any right of an
immovable property is directly and specifically in
G question, such property cannot be transferred by any
party to the suit so as to affect the rights of any other
party to the suit under any decree that may be made in
such suit. If ultimately the title of the pendente lite
transferor is upheld in regard to the transferred property,
the transferee's title will not be affected. On the other H
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 563
hand, if the title of the pendente lite transferor is A
recognized or acc~pted only in regard to a part of the
transferred property, then the transferee's title will be
s.aved only in regard to that extent and the transfer in
regard to the remaining p9rtion of the transferred
property to which the transferor is found not entitled, B
will be invalid and the transferee will not get any right,
title or interest in that portion. If the property transferred
pendente lite, is allotted in entirety to some other party
or parties or if the transferor is held to have no right or
title in that property, the transferee will not have any c
title to the property. Where a co-owner alienates a
property or a portion of a property representing to be
the absolute owner, equities can no doubt be adjusted
while making the division during the final decree
proceedings, if feasible and practical (that is without 0 causing loss or hardship or inconvenience to other
parties) by allotting the property or portion of the
property transferred pendente lite, to the share of the
transferor, so that the bonafide transferee's right and
title are saved fully or partially. [Para 10] [571-C-H; 572- E
A]
2.2. In the instant case, a suit for partition filed by
the first respondent against the second respondent in
the year 1985 which included the suit property, was
pending in a court of competent jurisdiction as on the F
date of sale (11.4.1990) by the second respondent in
favour of the appellant. The partition suit was not
collusive. Having regard to Section 52 of the Act, the
sale by the second respondent in favour of the
appellant did not in any way affect the right-of the first G
respondent (plaintiff in the partition suit) or the decree
made in her favour in the said partition suit. It is thus
evident that the sale by the second respondent in favour
of the appellant though not void, did not bind the first
respondent. On the other hand, the sale in favour· of H
564 SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.
A appellant was subject to the right declared or recognized
in favour of the first respondent-plaintiff under the
decree passed in the pending partition suit. The sale
pendente lite would, therefore, be subject to the decree
in the partition suit. In the final decree passed in the
B partition suit, the major portion of the suit property was
allotted to the share of the first respondent and to that
extent, the sale in favour of the appellant would be
ineffective. But in regard to the remaining portion of
the suit property which stood allotted to the share of
c the second respondent in the final decree in the partition
suit, the sale by the second respondent in favour of
the appellant would be effective, valid and binding on
the second respondent and to that extent, the appellant
is entitled to a declaration of title and consequential
0 injunction. The suit ought not to have been dismissed
in entirety even if the sale by the second respondent in
favour of appellant on 11.4.1990 was hit by the doctrine
of tis pendens. The second respondent cannot avoid
the sale made by her on the ground that she was held
E to be not the exclusive owner, in the pending partition
suit. Therefore, the courts below ought to have decreed
the appellant's suit in part, in regard to the portion of
the suit property that fell to the share of second
respondent instead of dismissing the suit. Therefore,
the declaration of title with consequential permanent·
F injunction as prayed is granted in regard to that portion
of the suit property that was allotted to the second
respondent in the partition suit. [Paras 11, 12, 16] [572-
B-H; 573-A-B; 576-B]
G A related suggestion to the Law makers
3.1. Absence of a mechanism for prospective
purchasers to verify whether a property is subject to
any pending suit or a decree or attachment cause lot
H of hardship, loss, anxiety and unnecessary litigation. At
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 565
present, a prospective purchaser can find out about A
any existing encumbrance over a property either by
inspection of the Registration Registers or by securing
a certificate relating to encumbrances (that is copies of
entries in the Registration Registers) from the
jurisdictional Sub-Registrar under Section 57 of the B
Registration Act, 1908. But a prospective purchaser has
no way to ascertain whether there is an.y suit or
proceeding pending in respect of the property, if the
person offering the property for sale does not disclose
it or deliberately suppresses the information. The C
inconveniences, risks, hardships and misery as a result
of such transfers could be avoided and the property
litigations could be reduced to a considerable extent, if
there is some satisfactory and reliable .method by which
a prospective purchaser can ascertain whether any suit
is pending (or whether the property is subject to any D
decree or attachment) before he decides to purchase
the property. A solution has been found to this problem
in the States of Maharashtra by an appropriate local
amendment to section 52 of the Act, by Bombay Act 4
of 1939. The Law Commission and the Parliament must E
consider such amendment or other suitable amendment
to cover the existing void in title verification or due
diligence procedures. Provision can also be made for
compulsory registration of such notices in respect of
decrees and in regard to attachments of immoveable F
properties. [Paras 13, 14] [573-C-H; 574-A-C; 575-C]
3.2. At present in most of the States, agreements to
sell are not compulsorily registrable as they do not
involve transfer of any right, title or interest in an G
immoveable property. Registration of agreements of sale
will reduce property litigation. It will go a long way to
discourage generation and circulation of black money
in real estate matters, as also undervalua.tion of
documents for purposes of stamp duty. It will also H
566 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A discourage the growth of land mafia and muscleman
who dominate the real estate scene in various parts of
the country. [Para 15) [575-0-G)
B
. c
D
E
Case Law Reference:
AIR 1973 SC 569
c2001) 2 sec 404
relied on
relied on
Para 9
Para 9
CIVIL APPELLATE JURISDICTION Civil Appeal No.
10325 of 2010.
From the Judgment & Order dated 01.09.2009 of the
High Court of Judicature at Madras in S.A. No. 1141 of 2008.
R. Balasubramaniam, B. Karunakaran, V. Balachandran
for the Appellant.
N. Shobha, Sriram J. Thalapathy, Adhi Venkataraman,
S.P. Parthasarthy for the Respondents.
The Judgment of the Court was delivered by
R.V.RAVEENDRAN, J. 1. Notice to respondents was
issued limited to the question whether the High Court ought
to have decreed the appellant's suit for declaration and
consequential injunction at least in respect of the portion of
the suit property which was allotted to the share of second
F respondent in the earlier partition suit filed by the first
respondent. Leave is granted only in regard to that question.
2. The appellant was the plaintiff in a suit for declaration
of title and permanent injunction in regard to the suit property,
G that is, a plot measuring East to West : 49 feet and north
south 81 feet, total extent of 3969 sq.ft (forming part of Natham
Survey No. 178 (New No. 137-138) of a total extent of 4
acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk
and District). The appellant filed the said suit in the year
H 2000 in the court of Subordinate Judge, Thiruvallur (OS
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 567
[R.V. RAVEENDRAN, J.]
No.68/2000) subsequently transferred and renumbered as OS A
No. 138 of 2004 on the file of the District Munsiff, Thiruvallur.
B
3. The case of appellant in brief is as under: that the suit
property was purchased by the second respondent under sale
deed dated 4.3.1957; that she was in possession and
enjoyment of the suit property as absolute owner and had
mortgaged it in favour of appellant's sister (T.N. Latha) on
30.6.1983; that second respondent sold the suit property in
favour of the appellant under sale deed dated 11.4.1990 and
delivered possession thereof to him in pursuance of the sale; C
that though the suit property was the self acquired property
of the second respondent, the first respondent who is her
step-daughter, filed a collusive suit against the second
respondent in OS No. 8/1985 on the file of the Sub-ordinate
Judge, Thiruvallur alleging that the suit property and several
0 other properties belonged to her father Ekambara Reddy and
that she and second respondent had each an half share in
those properties; that the appellant is a bona fide purchaser
of the suit property from second respondent and he was
unaware of the pendency of the said suit for partition in O.S.
No.8/1985; that subsequently the said suit for partition filed
by the first respondent was decreed vide preliminary decree
dated 17.3.1994 holding that the first respondent was entitled
to half share in the properties described as Items 1 to 6 in
the partition suit schedule (which included the· suit property
(as Item No.6); that in the final decree proceedings, a
Commissioner was appointed to divide the properties; that
on the basis of the Commissioner's report, a final decree
was passed on 7.4.2000 dividing the properties; that on
account of collusion between first and second respondents,
E -
F
the Commissioner's report divided the suit property in a G
manner that nearly three fourth portion of the suit property
was allotted to the share of the first respondent and only
about a one-fourth portion was allotted to the share of the
second respondent; and that adversely affected his right and
title to the suit property and therefore it became necessary H
568 SUPREME COURT REPORTS [2010) 14 (AODL.) S.C.R.
A for him to file a suit for declaration of his right and title to the
suit property with a consequential permanent injunction.
4. The first respondent resisted the suit contending that
the appellant had purchased the suit property during the
8 pendency of her suit for partition and that being a purchaser
pendente lite, the sale in his favour was hit by the doctrine
of /is pendens and therefore he could not claim any right in.
the suit property. She asserted that the suit property was not
the self-acquired prop.erty of the second respondent,. and that
C the suit property was purchased by her father in the name of
the second respondent. She denied that there was any
collusion between her and the second respondent. The
second respondent did not contest the suit.
5. The trial court by judgment dated 6.7.2005 dismissed
D the appellant's suit. It held that the suit property was not the
self acquired property of second respondent and that there
was no collusion between first and second respondents; and
that the appellant having purchased the suit property under
sale dated 11.4.1990 during the pendency of the suit for
E partition (OS No.8/1985) filed by the first respondent against
the second respondent, the sale in his favour was hit by the
doctrine of /is pendens and that therefore the appellant did
not get any title to the suit property and he was not entitled
to the relief of declaration and injunction sought by him. The
F appeal filed by the appellant was dismissed by the first
appellate court by judgment and decree dated 26.3.2008.
The second appeal filed by the appellant was dismissed by
the High Court by the impugned judgment dated 1.9.2009 by
holding that appellant was a pendente lite purchaser,
G attracting the doctrine of tis pendens under Section 52 of
Transfer of Property Act, 1882 ('Act' for short) and therefore
the courts below were justified in ignoring the purchase by
appellant. Feeling aggrieved the appellant filed the present
appeal.
H 6. The partition suit was decreed holding that the first
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 569
[R.V. RAVEENDRAN, J.]
respondent was entitled to half share in the six properties A
which were the subject matter of partition suit including the
suit property. In the final decree proceedings, an equitable
division was made accepting the report of the Commissioner
who had divided the suit property as per the sketch (Ex. C5) resJlting in approximately three-fourth of the suit property 8
(vacant site portion) being allotted to the first respondent and
only the remaining one-fourth of the suit property (site with
house thereon) being allotted to the second respondent. The
contention of the appellant that the partition suit by the first
respondent against the second respondent was collusive, and c
that the suit property was the self acquired property of the
second respondent and the first respondent did not have a
share therein, have been concurrently negatived. The
alternative contention of the appellant that even if the first
respondent had a half share therein, the division and allotment 0 of the properties in the partition suit ought to have been
made in a manner that the entire suit property was allotted
to the share of second respondent to work out equities, . was
also negatived by the courts below.
7. As per the Report of Commissioner, schedule Items E
1 to 5 in the partition suit were agricultural lands in all
measuring 44 cents (less than half an acre) and they were
divided equally by allotting 22 cents to first respondent and
22 cents to second respondent. Item No.6 was a house site
with a house in the north western portion. As per the F
Commissioner's sketch (Ex.C-5), it measured East to West,
48'3" on the northern side and 53'3" on the southern side
and North to South : 53'9" on the eastern side and 60'3" on
the western side. The entire plot was shown by the letters 'A,
8, C, D, E, F, G, H, A' and as per the final decree based G
on the Commissioner's report, the North Western portion
shown by the letters A, 8, I, H, A measuring East to West:
24' on the north and 24'9" on the south, and North to South
: 28'9" on the east and 29' on the west with the house thereon
(measuring 16' x 27'3") was allotted to the share of the H
570 SUP~EM!;. COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A second respondent; and the entire remaining portion which
was of an inverted L shape shown by the letters B, C, D, E,
F, G, H, I, B was allotted to the share of the first respondent.
As Items 1 to 5 in the partition suit schedule were small
agricultural lands, they were equally divided and it was not
B possible to allot Item No.6 in entirety to the second
respondent. ·
8. The trial court, first appellate court and the High Court
on appreciating the evidence have held that the partition suit
. C was nofcollusive. There was a valid reason for a larger portion
of Item No.6 being allotted to first respondent, as the portion
allotted to the second respondent had a house therein and to
equalize the value, a larger portion (vacant plot) was allotted
to first respondent. Therefore this court found no reason to
interfere on that score and issued notice in the special leave
D petition restricted to the question whether the appellant should
have been granted a decree at least in regard to the onefourth portion in the suit property that was allotted to the
second respondent instead of non-suiting him in entirety. That
limited issue alone arises for our consideration.
E
F
G
H
9. Section 52 dealing with tis pendens is relevant and
it is extracted below :
"Transfer of property pending suit relating thereto.-
During the pendency in any Court having authority within
the limits of India excluding the State of Jammu and
Kashmir or established beyond such limits by the Central
Government of any suit or proceeding which is not
collusive and in which any right of immovable property is
directly and specifically in question, the property 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." x x x x x x
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 571
[R.V. RAVEENDRAN, J.]
In Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this A
court held that the purpose of Section 52 of the Act is not to
defeat any just and equitable claim, but only to subject them
to the authority of the court which is dealing with the property
to which claims are put forward. This court in Hardev Singh
v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of B
the Act does not declare a pendente lite transfer by a party
to the suit as void or illegal, but only makes the pendente lite
purchaser bound by the decision in the pending litigation.
10. The principle underlying Section· 52 is clear. If during C
the pendency of any suit in a court of competent jurisdiction
which is not collusive, in which any right of an immovable
property is directly and specifically in question, such property
cannot be transferred by any party to the suit so as to affect
the rights of any other party to the suit under any decree that
may be made in such suit. If ultimately the title of the pendente D
lite transferor is upheld in regard to the transferred property,
the transferee's title will not be affected. On the other hand,
if the title of the pendente lite transferor is recognized or
accepted only in regard to a part of the transferred property,
then the transferee's title will be saved only in regard to that E
extent and the transfer in regard to the remaining portion of
the transferred property to which the transferor is found not
entitled, will be invalid and the transferee will not get any
right, title or interest in that portion. If the property transferred
pendente lite, is allotted in entirely to some other party or F
parties or if the transferor is held to have no right or title in
that property, the transferee will not have any title to the
property. Where a co-owner alienates a property or a portion
of a property representing to be the absolute owner, equities
can no doubt be adjusted while making the division during G
the final decree proceedings, if feasible and practical (that is
without causing loss or hardship or inconvenience to other
parties) by allotting the property or portion of the property
transferred pendente lite, to the share of the transferor, so
H
572 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. .
A that the bonafide transferee's right and title are saved fully or
partially.
11. In this case, a suit for partition filed by the first
respondent against the second respondent in the year 1985
8 which included the suit property, was pending in a court of
competent jurisdiction as on the date of sale (11.4.1990) by
the second respondent in favour of the appellant. The partition
suit was not collusive. Having regard to Section 52 of the
Act, the sale by the second respondent in favour of the
C appellant did not in any way affect the right of the first
respondent (plaintiff in the partition suit) or the decree made
in her favour in the said partition suit. It is thus evident that
the sale by second respondent in favour of the appellant
though not void, did not bind the first respondent who was
the plaintiff in the partition suit. On the other hand, the sale
D in favour of appellant was subject to the right declared or
recognized in favour of the first respondent-plaintiff under the
decree passed in the pending partition suit. The sale pendente
lite would therefore be subject to the decree in the partition
suit. In the final decree passed in the partition suit, the major
E portion of the suit property shown by the letters B, C, D, E,
F, G, H, I, B in the Commissioner's sketch (Ex.C-5) was
allotted to the share of the first respondent and to that extent,
the sale in favour of the appellant would be ineffective. But in
regard to the remaining portion of the suit property namely
F the portion shown by the letters A, B, I, H, A in the
Commissioner's sketch (Ex.C-5) which stood allotted to the
share of the second respondent in the final decree in the
partition suit, the sale by the second respondent in favour of
the appellant is effective, valid and binding on the second
G respondent and to that extent, ·the appellant is entitled to a
declaration of title and consequential injunction. . .
12. We are therefore of the view that the suit ought not
to have been dismissed in entirety even if the sale by the
H second respondent in favour of appellant on 11.4.1990 was
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 573
[R.V. RAVEENDRAN, J.]
hit by the doctrine of /is pendens. The second respondent A
cannot avoid the sale made by her on the ground that she
was held to be not the exclusive owner, in the pending partition
suit. Therefore the courts below ought to have decreed the
appellant's suit in part, in regard to the portion of the suit
property that fell to the share of second respondent instead B
of dismissing the suit.
A related suggestion to the Law makers
13. It is necessary to refer to the hardship, loss, anxiety
and unnecessary litigation caused on account of absence of C
_a mechanism for prospective purchasers to verify whether a
'property is subject to any pending suit or a decree or
attachment. At present, a prospective purchaser can easily
find out about any existing encumbrance over a property either
by inspection of the Registration Registers or by securing a D
certificate relating to encumbrances (that is copies of entries
in the Registration Registers) from the jurisdictional SubRegistrar under Section 57 of the Registration Act, 1908.
But a prospective purchaser has no way of ascertaining
whether there is any suit or proceeding pending in respect of E
the property, if the person offering the property for sale does
not disclose it or deliberately suppresses the information. As
a result, after parting with the consideration (which is many .
a time the life time savings), the purchaser gets a shock of
his life when he comes to know that the property purchased
by him is subject to litigation, and that it may drag on for
decades and ultimately deny him title to the property. The
pendente lite purchaser will have to wait for the litigation to
come to an end or he may have to take over the responsibility
F
of conducting the litigation if the transferor loses interest after G
the sale. The purchaser may also face objections to his being
impleaded as a party to the pending litigation on the ground
that being a /is pendens purchaser, he is not a necessary
party. All these inconveniences, risks, hardships· and misery
could be avoided and the property litigations could be reduced H
574 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A to a considerable extent, if there is some satisfactory and
reliable method by which a prospective purchaser can
ascertain whether any suit is pending (or whether the property
is subject to any decree or attachment) before he decides to
purchase the property.
8 14. It is of some interest that a solution has been found
to this problem in the States of Maharashtra by an
appropriate local amendment to section 52 of the Act, by
Bombay Act 4 of 1939. Section 52, as applicable in the
Maharashtra ·and Gujarat, reads thus (the amendment is
C shown in italics):
D
E
F
"52. (1) During the pendency in any court having authority
within the limits of India excluding the State of Jammu
and Kashmir established beyond such limits by the
Central Government, of any suit or proceeding which is
not collusive and in which any right to immoveable
property is directly and specifically in question, if a notice
of the pendency of such suit or proceeding is registered
under section 18 of the Indian 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 sub-section (1) shall contain the following
particulars, namely:-
G (a) the name and address of the owner of immoveable
property or other person whose right to the immoveable
property in question;
(b) the description of the immoveable property the right
to which is in question;
T.G. ASHOK KUMAR v. GOVINDAMMAL AND ANR. 575
[R.V. RAVEENDRAN, J.]
(c) the court in which the suit or proceeding is pending; A
(d) the nature and title of the suit or proceeding; and
(e) the date on which the suit or proceeding was
instituted.
xxxxxxxxxxxx
B
We hope that the Law Commission and the Parliament
considers such amendment or other suitable amendment to
cover the existing void in title verification or due diligence C
procedures. Provision can also be made for compulsory
registration of such notices in respect of decrees and in
regard to attachments of immoveable properties.
15. We may also refer to another related area where
registration should be made compulsory to reduce property D
litigation. At present in most of the states, agreements to sell
are not compulsorily registrable as they do not involve transfer
of any right, title or interest in an immoveable property.
Unscrupulous property owners enter into agreements of sale
and take huge earnest money deposits/advances, and then E
sell the property to others thereby plunging the original
agreement holder and the subsequent purchaser into litigation.
Registration of agreements of sale will reduce such litigation.
It will also assist in putting an end to the prevalent practice
of entering into agreements of sale showing the real F
consideration and then registering the sale deed for only a
part of the real consideration. If all agreements of sale are
compulsorily registered, that will go a long way to discourage
generation and circulation of black money in real estate
matters, as also undervaluation of documents for purposes G
of stamp duty. It will also discourage the growth of land mafia
and muscleman who dominate the real estate scene in various
parts of the country. Prevention of a malaise, is always better
than allowing a malaise to develop and then trying to cure it.
Be that as it may. H
576 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A Conclusion
16. We accordingly allow this appeal in part and set
aside that part of the judgment of the High Court holding that
the appellant-plaintiff is not entitled to any relief. Instead, the
8 suit is decreed in part and declaration of title with
consequential permanent injunction as prayed is granted in·
regard to that portion of the suit property that was allotted to
the second respondent in the partition suit, that is portion
shown as A, B, I, H, A in Ex.C-5 (Commissioner's sketch) in
O.S.No.8/1985. Parties to bear their respective costs.
c
D.G. Appeal partly allowed.
