Bennett, J.:— This is an appeal from a decision of the Additional Subordinate Judge, Cuttack, reversing the judgment of the Munsif of the 1st Court, Cuttack, in a suit instituted by the respondent under O. 21, R. 103 of the CPC, for a declaration that the decree obtained by the appellant in original Suit No. 242 of 1930 of the latter Court is not binding upon her and for a permanent injunction against the appellant restraining him from taking delivery of possession of the disputed property in execution of the said decree.

2. The facts of the case are as follows. On 5-12-1927, one Alekh Sahu agreed to sell the disputed property to the appellant. On 20-6-1930, Alekh Sahu entered into a second agreement under which he contracted to sell the disputed property to the respondent and on 16-7-1930, he executed a deed of sale thereof to the respondent who thereafter entered into possession and her name appears in the Current Settlement Record of Rights.

3. There are concurrent findings of fact of the two Courts below, which were not disputed before us, that the respondent at the date of her purchase had notice of the prior sale to the appellant. On the same day, 16-7-1930, but subsequent to the actual execution of the above-mentioned deed of sale to the respondent, the appellant instituted O.S No. 242 of 1930 against Alekh Sahu claiming specific performance of the contract of sale of 5-12-1927. In his evidence the appellant as D.W 3, admitted that on 16-7-1930, when he instituted O.S No. 242 of 1930, he was aware of the prior execution on that day of the deed of sale to the respondent. He did not, however, see fit to implead the respondent in that suit. On 19-7-1930, three days after the institution by the appellant of O.S No. 242 of 1930, the deed of sale to the respondent was duly registered. The appellant's claim in O.S No. 242 of 1930 against Alekh Sahu for specific performance of the agreement of 5-12-1927, was duly decreed and a registered kebala was duly executed in his favour by the Munsif of the 1st Court. On his application for delivery of possession, the respondent intervened under Section 151 of the CPC, and prayed that delivery of possession be refused. His claim was dismissed on the ground that the deed of sale to him of 16-7-1930, was executed pendente lite. He therefore commenced the present suit.

4. The first point taken by Mr. B.K Pal on behalf of the appellant was that the sale to the respondent was pendente lite in that the deed of sale was not registered until three days after the institution of suit No. 242 of 1930. He argued that since Section 54 of the Transfer of Property Act, 1882, provides that a sale of tangible immovable property can only be made by a registered instrument, it follows as of course that the date of the transfer for the purposes of S. 52 of that Act, which enunciates the doctrine of lis pendens, must be the date of registration. This argument however entirely ignores Section 47 of the Registration Act, 1908, which itself repeats the corresponding provision of the earlier Registration Acts of 1864, 1866, 1871 and 1877 and which provides as follows:

“A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.”

5. This section can only be read together with Section 54 of the Transfer of Property Act, 1882, on the basis that the transfer by registered instrument under Section 54 of the Transfer of Property Act, 1882, once effected, relates back to the date of execution or other conventional date. That this is so, is, in my opinion, clear from the decision of the Judicial Committee in 8 P.L.T 3271 and from the application of that decision made by a Division Bench of this Court in 19 P.L.T 383.2 In the case in the Privy Council, it was held that where a Hindu governed by the Mitakshara School executed a deed of gift and made it over to the donee, who accepted the gift, but prior to registration the donor adopted a son, the adoption did not render the gift inoperative, although the gift had not been registered before adoption. The ratio decidendi of their Lordships' decision was stated by Lord Salvesen as follows:

“They (their Lordships) are unable to see how the provisions of Section 123 of the Transfer of Property Act, can be reconciled with Section 47 of the Registration Act, except upon the view that, while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place. When the instrument of gift hag been handed by the donor to the donee and accepted by him, the former has done everything in his power to complete the donation and to make it effective. Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period. Neither death nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.”

6. The provisions of Section 123 of the Transfer of Property Act, 1882, which govern the mode of a valid transfer of immovable property by way of gift, are as categorical and mandatory in their terms as are those of S. 54 of that Act and I am of opinion that they cannot be distinguished in their relation to Section 47 of the Registration Act. That this is so, follows clearly from the decision of this Court above referred to in 19 P.L.T 383 where in reliance upon the decision of the Judicial Committee above quoted, it was held that where a deed relating to certain properties requiring registration was executed and before it could be registered the properties were attached, the attachment did not prevail against the deed or prevent registration thereof and that when registered the deed took effect from the date of its execution.

7. Mr. B.K Pal argued strenuously that Section 47 of the Registration Act, 1908, operated only as between the parties to the deed and did not affect the rights of third parties and he referred to the decisions in A.I.R 1936 Cal. 17,3 A.I.R 1941 Cal. 784 and A.I.R 1934 Rang. 216.5 In so far as those decisions turn upon the wording of some other statutory provisions, such as Section 54 of the Provincial Insolvency Act, 1920, and s. 26F, Ben. Ten. Amendment Act, 1938, they are no guide to the present question, but in so far as they purport to interpret Section 47 of the Registration Act, 1908, they appear to me, if I may say so respectfully, to be inconsistent with the decision of the Privy Council in 8 P.L.T 327 and of this Court in 19 P.L.T 383, above referred to. In both these cases the effect of S. 47 upon the right of a third party was directly in issue and the immediate subject of the decision.

8. Mr. B.K Pal next contended that he was entitled to rely upon Section 91 of the Trusts Act, 1882, and that thereunder the respondent must be deemed to hold the property in dispute in trust for the appellant. In so far as this contention, in the circumstances of this case, can be said to aid the appellant, it must mean that by virtue of Section 91 of the Trusts Act, 1882, a person to whom the owner has contracted to sell immovable property is entitled to sue a subsequent transferee thereof with notice for possession of the immovable property without claiming or first obtaining a decree for specific performance of the contract, but that proposition refutes itself. Under Section 27(b) of the Specific Relief Act, the vendor of immovable property is just as much a trustee for the person with whom he contracts for the sale thereof as is a subsequent purchaser thereof under Section 91 of the Trusts Act, 1882, but, as the decision of the Judicial Committee in 45 Mad. 6416 makes abundantly apparent, the only remedy of such a person against a vendor is a suit for specific performance. By purchasing with notice of the prior agreement, the subsequent purchaser assumed all the obligations of the vendor, but he does not assume any greater obligation. The words ‘to the extent necessary to give effect to the contract’ in Section 91 of the Trusts Act, 1882, mean, therefore, to the extent necessary to give effect to the only means that exist of enforcing the contract, namely, a suit for specific performance. The trust created by Section 91 of the Trusts Act, 1882, arises by operation of law and, as the decision of the Judicial Committee in 10 Pat. 8517 shows, is not a trust for a specific purpose within the meaning of Section 10 of the Limitation Act, 1908. Once, therefore, the remedy by way of specific performance is barred under Article 113 of sch. 1 to the Limitation Act, 1908, the person to whom the vendor first contracted to sell the property has no further or other remedy. Mr. B.K Pal sought to distinguish the case where such a person has obtained a decree for specific performance against the vendor and cited the dictum of Mookerjee, J. in 34 C.L.J 79,8 where that very learned Judge appears to have laid down a general proposition of law to the effect that when a suit for specific performance is ended by a final decree transferring the title, that title dates back to the date of the agreement on which the suit is based and that the Court will not permit its decree to be rendered nugatory by intermediate conveyances. It is to be remarked that if that proposition is accepted at its face value, it renders Section 52 of the Transfer of Property Act, 1882, largely, and Section 91 of the Trusts Act, 1882, entirely redundant, since it extends the doctrine of lis pendens in such a case beyond the actual pendency of the suit to the period between the date of the agreement on which a suit for specific performance is based and the date of the institution of the suit. It is only by some such extension of the doctrine of lis pendens that the suggested distinction can be maintained, because the suit and decree for specific performance against the vendor is res alios inter acta qua the subsequent purchaser and cannot otherwise affect his rights, but, the doctrine never has and, within the ordinary meaning of the expression lis pendens, never could be so extended. Both in the law of India as set out in Section 52 of the Transfer of Property Act, 1882, and in the law of England, upon which the section is based, as enunciated by Turner L.J, in (1857) 1 De. G. &, J. 566,9 the operation of the doctrine is restricted to the period of the lis. Nor can it be suggested that having obtained the decree for specific performance against the vendor, the purchaser under the decree in instituting a suit for possession against the original subsequent purchaser on the basis of the decree is doing no more than enforcing his original contract for the enforcement of which the subsequent purchaser holds the property in trust. The original con-tract with the vendor has merged in the decree and in such a suit it is not his original contract which the purchaser under the decree is seeking to enforce but the decree itself which he has obtained in a suit to which the subsequent transferee was not a party. The point is really elemental and looking at the actual decision in 34 C.L.J 79 I am very doubtful if Mookerjee, J. really intended to do more than enunciate the ordinary doctrine of lis pendens, because it was not necessary for the purposes of that case in any way to extend the doctrine, the subsequent purchase there in question being clearly effected after the date of the suit for specific performance, as was also the case in 17 C.L.J 42710 on which the learned Judge specifically relied for the proposition he enunciated.

9. For the above reasons, I would dismiss the appeal with costs.

Beevor, J.:— I agree.

D.H

10. Appeal dismissed.