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Gorakh Ramchandra Mali And Anr. v. State Of Maharashtra And Ors.
Factual and Procedural Background
The present writ petition challenges the issuance and registration of a notice of lis pendens under Section 52 of the Transfer of Property Act, 1882, and Section 18(ee) of the Registration Act, 1908. The petitioners contend that no suit or proceeding relating to immovable property is pending between the parties, thereby rendering the registration of lis pendens invalid. The respondents maintain that proceedings under Section 138 of the Negotiable Instruments Act, initiated by the petitioners and currently sub judice, relate to the consideration amount for immovable property and justify the registration of lis pendens. The matter was heard with the consent of the parties and the Court proceeded to examine the applicability of the statutory provisions invoked.
Legal Issues Presented
- Whether the notice of lis pendens can be registered under Section 52 of the Transfer of Property Act and Section 18(ee) of the Registration Act in the absence of any pending suit or proceeding directly and specifically concerning immovable property.
- Whether proceedings under Section 138 of the Negotiable Instruments Act qualify as proceedings in which the right to immovable property is directly and specifically in question, thereby attracting Section 52 of the Transfer of Property Act and permitting registration under Section 18(ee) of the Registration Act.
- The legality and jurisdiction of the registering authority in registering a notice of lis pendens when no qualifying suit or proceeding under Section 52 of the Transfer of Property Act exists.
Arguments of the Parties
Petitioners' Arguments
- No suit or proceeding concerning immovable property is pending between the parties; hence, Section 52 of the Transfer of Property Act is inapplicable.
- The registration of lis pendens under Section 18 of the Registration Act is unauthorized and illegal.
- The show cause notice relating to mutation entry is also illegal.
Respondents' Arguments
- Proceedings under Section 138 of the Negotiable Instruments Act, initiated by the petitioners, are pending and relate to the consideration amount for immovable property.
- Such proceedings justify registration of lis pendens under Section 18(ee) of the Registration Act and invocation of Section 52 of the Transfer of Property Act.
- The writ petition is not maintainable; petitioners should seek remedy before the Civil Court.
- Relied on the Supreme Court judgment in Shanti Budhiya Vesta Patel Vs. Nirmala Jayprakash Tiwari (2010 All S.C.R. 1921).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shanti Budhiya Vesta Patel Vs. Nirmala Jayprakash Tiwari, 2010(5) Bom.C.R. 418(S.C.) : 2010 All S.C.R. 1921 | Authority on registration of lis pendens and related procedural aspects. | The Court noted the respondents' reliance on this judgment but proceeded to interpret the statutory provisions independently to determine applicability. |
Court's Reasoning and Analysis
The Court examined the scope and applicability of Section 52 of the Transfer of Property Act and Section 18(ee) of the Registration Act. Section 52 embodies the doctrine of lis pendens, restricting transfer or dealing with immovable property during the pendency of a suit or proceeding where the right to such property is directly and specifically in question.
The Court emphasized that for Section 52 to apply, there must be a non-collusive suit or proceeding concerning immovable property. The Court found that proceedings under Section 138 of the Negotiable Instruments Act do not satisfy this criterion as they do not directly and specifically question the right to immovable property but relate only to the consideration amount.
Consequently, the Court held that Section 52 of the Transfer of Property Act was inapplicable, and since the registration under Section 18(ee) of the Registration Act depends on the applicability of Section 52, the registering authority acted without jurisdiction in registering the lis pendens notice.
The Court rejected the respondents' contention that any proceeding, irrespective of its nature or connection to immovable property, could be registered under Section 18(ee). The Court clarified that only suits or proceedings directly concerning immovable property fall within the ambit of Section 52 and thus justify registration.
Regarding the show cause notice related to mutation entry, the Court allowed the petitioners to file a reply and pursue appropriate legal action.
Holding and Implications
The Court made the Rule absolute in terms of the petitioners' prayer Clause “A”, effectively quashing the registration of the lis pendens notice under Section 18(ee) of the Registration Act as illegal and without jurisdiction.
The direct consequence is that the notice of lis pendens registered on the basis of proceedings under Section 138 of the Negotiable Instruments Act is set aside. The decision does not establish a new precedent beyond the specific statutory interpretation and clarifies the limited scope of lis pendens registration. No broader legal principle beyond the facts and statutory provisions involved was established.
Cases referred :
1. Shanti Budhiya Vesta Patel Vs. Nirmala Jayprakash Tiwari, 2010(5) Bom.C.R. 418(S.C.) : 2010 All S.C.R. 1921.
Advocates appeared :
Amol S. Sawant, for petitioners.
S.D. Kaldate, A.G.P. for respondent Nos. 1 to 4.
A.D. Kasliwal, for respondent Nos. 4 5.
GANGAPURWALA S.V., J.: - Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The notice of lis pendens issued under section 52 of the Transfer of Property Act and registered vide section 18 of the Registration Act is assailed in the present writ petition.
3. Mr. Sawant, the learned Counsel states that, there is no suit or proceedings pending between the parties with regard to any immovable property. As such the lis pendens could not have been registered. section 52 of the Transfer of Property Act, 1882 (hereinafter referred as to the “T.P. Act” for the sake of brevity) is inapplicable. The authorities have wrongly invoked their powers under section 18 of the Registration Act (hereinafter referred as to the “Act of 1908” for the sake of brevity). According to the learned Counsel, even show cause notice with regard to mutation entry is illegal.
4. Mr. Kasliwal, the learned Counsel for respondent Nos. 4 and 5 supports the impugned action/order and submits that the proceedings are pending between the parties. The proceedings under section 138 of the Negotiable Instruments Act were initiated by the petitioners and same are subjudice in writ petition in High Court. The same is with regard to the consideration amount in respect of immovable property. If any proceeding is pending, same can be registered under section 18(ee) of the Registration Act and Section 52 of the T.P. Act can be invoked. According to the learned Counsel, this Court would not entertain the writ petition against the same. The petitioners have to approach the Civil Court to seek redressal of the grievance. The learned Counsel relies on the judgment of the Apex Court in a case of (Shanti Budhiya Vesta Patel and others Vs. Nirmala Jayprakash Tiwari and others)1, reported in 2010(5) Bom.C.R. 418(S.C.) : 2010 All. S.C.R. 1921.
5. Before adverting to the submissions canvased by learned Counsel for respective parties, it would be appropriate to refer Section 52 of the T.P. Act and section 18(ee) of the Act of 1908.
TRANSFER OF PROPERTY ACT, 1882
1. ..............
2. ..............
52. Transfer of property pending suit relating thereto.- During the pendency in any Court 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 to immoveable 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 the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
THE REGISTRATION ACT, 1908
1. ........
2. ........
18. Documents of which registration is optional.- Any of the following documents may be registered under this Act, namely,
(a) ..........
(ee) notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882;”Bombay Act 14 of 1939, section 4 (w.e.f. 15-6-1939) read with Act 35 of 1958, section 2 (w.e.f. 28-4-1958)
6. Perusal of section 18(ee) of the Act of 1908, it is manifest that the document i.e. notices of pending suits or proceedings referable to Section 52 of the T.P. Act can be registered.
7. Section 52 of the T.P. Act has its genesis in the doctrine of lis pendens.
8. Section 52 of the T.P. Act basically deals with suit or proceedings concerning an immovable property. The suit or proceedings pending should be qua immovable property. The right to immovable property has to be directly and specifically in question in the said suit or the proceedings then only under Section 52 of the T.P. Act would be applicable. Sub-section (ee) of section 18 of the Act of 1908 empowers the registering authority to register the notices of pending suit or proceedings referable to Section 52 of the T.P. Act. A proceeding under section 138 of the Negotiable Instrument Act cannot be said to be a proceedings, where right to immovable property is directly and specifically in issue/question.
9. In the light of the above, Section 52 of the T.P. Act would be inapplicable. Where Section 52 of the T.P. Act itself is inapplicable, no question arises of registering authority invoking sub-section (ee) of section 18 of the Act of 1908. The registering authority in a way has usurped the jurisdiction not vested in him. The said registration is without jurisdiction and authority.
10. The authority can invoke its powers under section 18(ee) of the Act of 1908 only if Section 52 of the T.P. Act is attracted. If proceeding or suit does not come within the purview and ambit of Section 52 of the T.P. Act, no question arises of authority registering the said suit or proceeding under section 18(ee) of the Act of 1908.
11. The contention of the learned Counsel for the respondent Nos. 4 and 5 that, it is not necessary that suit only can be registered, but even any proceedings can be registered and need not necessarily concern immovable property cannot be accepted. The suit or proceedings as referred in Section 52 of the T.P. Act is qualified with a right to immovable property being directly and specifically in question. The “proceedings” can also be registered under Section 52 of the T.P. Act, provided in the said proceedings right to immovable property is directly and specifically in question.
12. Proceeding under section 138 of the n.i. act would be outside the contour of Section 52 of the T.P. Act. Considering the above, the impugned order registering the notice of lis pendens as under section 18(ee) of the Act of 1908 is illegal and the same cannot be sustained.
13. Rule is accordingly made absolute in terms of prayer Clause “A”.
14. As far as the show cause notice with regard to mutation entry is concerned, the petitioners may file reply to the same and take appropriate action in accordance with law.
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